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The issue du jour is deportations, but the question has been a constant of Donald Trump’s presidencies: Is the president acting within the Constitution?
In his first term, it came up repeatedly: when he tried to quash an FBI investigation; when his administration ignored subpoenas; and when he tried to stay in office after losing an election.
Now, Trump’s administration has invoked wartime powers to deport mostly Venezuelan alleged gang members to a controversial prison in El Salvador.
When a federal judge ordered planes carrying the deportees to turn around, the message was, “Oopsie… Too late” along with a crying-laughing emoji.
That, at least, was the snarky post from El Salvador’s strongman President Nayib Bukele, a Trump ally, on Elon Musk’s X.
Bukele and the White House account have now posted video of the deportees, who will be housed in El Salvador for a year, apparently being paraded into the prison, their faces and heads forcibly shaved.
Trump’s attorneys have been more serious, arguing in court that the people in question had already been deported when US District Judge James Boasberg issued his ruling. CNN has tried to re-create the exact timeline.
But the fact remains that a judge made an order and Trump’s administration did not follow it, which would seem to open a new era in the question of whether the US is, in fact, in a constitutional crisis.
There is no set definition and no clear agreement about when the US actually enters a constitutional crisis.
Generally speaking, the US system of government is built around the idea that three coequal branches of government place checks and balances on each other.
“People generally use the term ‘constitutional crisis’ to describe periods when institutions of government are clearly in conflict,” law professors Sanford Levinson of the University of Texas and Jack Balkin of Yale wrote in 2009.
But they argued there has been “promiscuous use of the term.”
“The mere existence of conflict, even profound conflict, cannot be the definition of crisis,” they wrote. “Government institutions are always in conflict.”
If one branch stops honoring checks completely, the system gets out of whack.
“To me, where we get into real trouble is if there is open, willing defiance of a court order,” said CNN’s senior legal analyst Elie Honig, appearing Monday on CNN Max. “People use this phrase constitutional crisis. I hesitate to use that phrase. But if we get into open defiance, then we are there.”
The Trump administration is not currently saying it has the authority to simply defy the court, but it seems to be flirting with the idea.
“A district court judge can no more enjoin the expulsion of foreign terrorists to foreign soil than he can direct the movement of Air Force One,” White House adviser Stephen Miller told CNN’s Kaise Hunt in a contentious interview on her show “The Arena” on Monday.
Look for more debate over the details of when the order was issued and whether the administration could have or should have turned the planes around.
If the administration disagrees with a court, it has recourse, said Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program.
“The president’s remedy is to appeal, perhaps file an emergency appeal with the appellate court, but not to defy the order,” she said, also on CNN Max. “That’s what checks and balances mean. It means that the president cannot sit as the judge of his own actions.”
The Berkeley Law professor John Yoo, who worked in the George W. Bush administration and has taken an expansive view of executive authority, wrote Monday that he does not think the US is currently in a constitutional crisis. Presidents are bound to come into conflict with courts and Congress, Yoo argued.
I followed up by email asking Yoo what the term means to him.
“I confess that I have no clear definition of a constitutional crisis,” he said, adding that he does have clear ideas about what is not a constitutional crisis:
“It cannot just be a disagreement over the meaning of the constitution. It cannot be just a fight between the branches of government. … Not only do we have these conflicts all the time, but the Framers designed the separation of powers — according to James Madison — to encourage the three branches to fight.”
Yoo, currently a visiting scholar at the University of Texas at Austin, sees it differently, and told me claims of a constitutional crisis today “are examples of the hyper-partisan policies of our time than any real assault on the Constitution.”
Levinson, who co-authored a 2009 paper trying to define a constitutional crisis, told me during Trump’s first administration that crisis is built into the Constitution.
“It’s the Constitution itself that constitutes a crisis, because it sets up this byzantine system of separation of powers we often refer to as checks and balances that turns into a ping pong game without a definite end to it,” Levinson told me in 2019.
I reached out to Levinson to ask how things have changed in the past six years.
Even if the US is not in the midst of a constitutional crisis, it is stuck in an era of “constitutional hardball, which is the willingness to take advantage of every last legal possibility or legal technicality you try to score points for your political party,” Levinson said. That’s certainly a culture we’re living in.
A major shift, however, has occurred in Congress at the outset of Trump 2.0, Levinson argued, pointing to the “total and complete collapse of Congress as a genuine institution of governance.”
Even Republicans who might six years ago have opposed Trump on some issues, he said, “have turned into what I think really is a cult of personality.”
How those Republicans act if or when Trump actively ignores courts will be key.
Senate Minority Leader Chuck Schumer told the New York Times that the question of whether Trump defies courts is what wakes him up at “2, 3 in the morning.”
“I believe Republican senators, on this issue, will stand up,” Schumer said of a handful of his colleagues on the other side of the aisle. “About five or six have said publicly they will work to uphold the courts, and to uphold the law if Trump tries to break it. And we can do that legislatively if we have to.”
That would be an example of lawmakers reasserting equilibrium.
