We Have a "Constitutional Crisis"

 

Donald Trump's demolition of the East Wing of the White House isn’t just an architectural abomination; it’s symbolic of the wrecking ball he’s taken to the Constitution. Driven by his unbounded megalomania and supported by the high-tech oligarchy and a Cabinet of fawning sycophants, the 79-year-old president has precipitated a constitutional crisis and set the nation on the road to authoritarianism and democratic collapse.

Since resuming his seat behind the Resolute Desk, Trump has issued more than 360 executive orders, presidential memoranda, and presidential proclamations, effectively replacing the system of checks and balances and separation of powers that forms the backbone of the Constitution with strongman-style rule. Among his most notorious decrees are those that:

-End federal diversity, equity and inclusion (DEI) programs;

-Roll back environmental protections, encourage energy exploration and production on federal lands and waters, and eliminate electric vehicle mandates;

-Impose sanctions on liberal law firms and elite universities;

-Would restrict mail-in voting and impose national voter ID requirements;

-Empower the Department of Government Efficiency to reduce the size of the federal workforce and dismantle the administrative state;

-Authorize mass deportations and expedite removal proceedings to secure the borders and protect the nation from a claimed “invasion;”

-Seek to end birthright citizenship by reinterpreting the citizenship clause of the 14th Amendment’

-Designate antifa as a domestic terrorism organization;

-Create a “Joint National Terrorism Task Force” to “investigate, prosecute, and disrupt” the work of “entities and individuals” who sponsor, fund, or “otherwise aid and abet” acts of “political violence,” including alleged attacks on Immigration and Customs Enforcement facilities and “anti-police and ‘criminal justice’ riots;”

-Federalize the National Guard and dispatch troops to American cities;

-Impound congressionally authorized funds for foreign aid and medical research;

-Levy tariffs on imported goods without congressional approval; and

-Authorize Trump to fire members of independent federal agencies without cause under the auspices of the “unitary executive theory,” which posits that all executive power is concentrated in the person of the president.

Trump has also openly teased about running for a third term in contravention of the 22nd Amendment; secured three indictments and counting against his political critics; launched a lethal air campaign against alleged drug-smuggling boats in the Caribbean and the eastern Pacific without congressional authorization and in arguable violation of international law; and demanded that the Justice Department hand him $230 million to compensate for the federal investigations into alleged Russian interference in the 2016 election and for prosecuting him in the Mar-a-Lago documents case.

Confronted with this wreckage, most legal scholars now believe we have crossed the Rubicon. “We are in the midst of a constitutional crisis right now,” Berkeley Law School Dean Erwin Chemerinsky told the New York Times last February after Trump’s initial spate of executive orders. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this.”

Although there is no universally accepted definition of a constitutional crisis, Princeton University professor of politics Keith Whittington has written that constitutional crises fall into two general categories: operational crises, which occur when vital political disputes can’t be resolved within the existing constitutional framework; and crises of fidelity, which happen when a major political actor no longer feels bound by constitutional norms.

The United States is beset by both calamities at once. As Harvard Law School professor Noah Feldman explained on the eve of Trump’s first impeachment, Trump’s abiding lawlessness means that “we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.”

Winning the fight against Trumpism requires building a new progressive politics guided by energetic leaders like Zohran Mamdani, who can articulate a small “d” democratic vision for the future.

In Trump 2.0, the dangers have multiplied, extending from the executive branch to the supine Republican majority in Congress and the Supreme Court. The Republican Party has been completely captured by Trump and the MAGA movement, both at the state and national levels.

The Supreme Court has similarly surrendered the last vestiges of actual judicial independence. All claims to the contrary evaporated last July with the court’s 6-3 decision on presidential immunity (Trump v. United States), authored by Chief Justice John Roberts. The decision not only killed special counsel Jack Smith’s election subversion case against Trump, but it also altered the landscape of constitutional law, endowing presidents with absolute immunity from prosecution for actions taken pursuant to their enumerated constitutional powers, such as pardoning federal offenses, and presumptive immunity for all other “official acts” undertaken within the “outer perimeter” of their official duties.

In a scathing dissent, Justice Sonia Sotomayor blasted her Republican colleagues for inventing “an a textual, ahistorical, and unjustifiable” concept of immunity. “The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents,” she wrote, citing the famous Watergate tapes decision of United States v. Nixon. She concluded in a sad and angry lament, “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

Trump’s ascent has exposed the inherent weaknesses, loopholes, and limitations that have always existed in the imperfect system created by the venerated Founding Fathers, who for all of their failings (slaveholding chief among them), tried to erect formal structures to protect the republican form of government they established. Many realized the frailties of the project they undertook. Alexander Hamilton, perhaps the most prescient of the Founders, all but prophesied the rise of a Trump-like demagogue, warning in a letter to George Washington written during the financial panic of 1792:

"When a man unprincipled in private life, desperate in his fortune, bold in his temper… is seen to mount the hobby horse of popularity, he may “ride the storm and direct the whirlwind."

Hamilton’s warning isn’t just a curiosity for professional historians to ponder. It’s an announcement of a five-alarm fire in 2025. The all-important question is how we fight back. The first step, plainly, is to realize the gravity of the moment. American exceptionalism—the idea that this country is immune from authoritarianism—is a myth. The second step is to realize that Trumpism is not just another form of partisan politics. It cannot be countered by lethargic appeals by establishment Democrats to re-embrace the political center.

Winning the fight against Trumpism requires building a new progressive politics guided by energetic leaders like Zohran Mamdani, who can articulate a small “d” democratic vision for the future. And it will require a commitment from each of us to engage for the long haul, and never forget that together we have power, and that alone we have none.

Bill Blum is a former California administrative law judge. As an attorney prior to becoming a judge, he was one of the state's best-known death-penalty litigators. He is also an award-winning writer and legal journalist, and the author of three popular legal thrillers published by Penguin/Putnam as well as scores of features and book reviews published in a broad array of magazines and newspapers. His non-fiction work has appeared in a wide variety of publications, ranging from Common Dreams and The Nation to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.