Compelling Constitutional Conversations
–by Christopher Naughton
On our program Trump, the Constitution & the Rule of Law… I posited that we were facing a ‘constitutional crisis.’ The point we raised was that it wasn’t just the actions of the 45th president himself— that, in fact, America has been mired in the erosion of its institutions for some time, that normative, healthy checks and balances between the branches of government were lacking. And that their cumulative effect— even before Trump— warranted use of the term.
There has been pushback for sure.
“We haven’t yet had a complete defiance of the Rule of Law.”
— Mark Aronchick on the Trump, Constitution & the Rule of Law program
Perhaps it boils down to definitions. I offered the following reasons why our constitutional underpinnings were fraying and in danger, arguably ‘in crisis,’ before Trump was sworn in:
A hyper-partisan and obstructionist Congress
Sanctioning of torture as constitutional
Unprecedented vacancy on the Supreme Court for a year
Pervasive gerrymandering
The further expansion of the ‘unitary executive’— excessive executive presidential power
To that end, guest panelist Sheryl Axelrod stated “when you have torture, that is a break in the rule of law. When you have a president who nominates a Supreme Court justice and a GOP congress refuses to even vote on that individual, that has never happened before, it is a break in our entire history.”
Guest Hon. Edward Cahn suggested “but there is no rule of law violation. There is no constitutional violation or crisis.” Axelrod responded “the rule is, Congress shall advise and consent.” Not may advise and consent. Shall. “When you break with all of these traditions,” Axelrod says, ”you get to the point where people don't believe there is any rule of law anymore. And that is the real problem.”
So who gets to call it a crisis? Perhaps it is our difference in definitions.
Jennifer Chacón, a professor at the University of California Irvine School of Law, says "a crisis would be a situation where there was a genuine concern that one branch of the government was not acting constitutionally, and no checks seem to be operating on that branch.” According to Chacón, we are not there yet.
But when does the fraying of our institutions— collectively— indicate that we have moved beyond the cautionary to the dangerous? And now, add to the already weary infrastructure of a constitutional republic, the current administration’s actions and attitudes.
“The largest concern has to be that we have somebody in the White House who doesn't seem to have a strong grasp of what the rule of law means,” according to Kimberly Mutcherson, Vice Dean and Professor of Law, Rutgers Law School Camden, “who doesn't seem to understand the Constitution, or have any anything more than a cursory knowledge of what the Constitution requires. And that's got to be concerning.”
Evan McMullin, a former C.I.A. officer and conservative independent presidential candidate in 2016, says:
"The president “lacks even an interest in the Constitution. [The] administration’s deeper objective is to weaken the democratic institutions that limit their power. Eroding confidence in voting, elections and representative bodies gives them a freer hand to wield more power.” — Evan McMullin, a former C.I.A. officer and conservative independent presidential candidate
“Worse,” says McMullin “his rhetoric demonstrates authoritarian tendencies. He has questioned judicial independence, threatened the freedom of the press, libel laws, flag burning called for violating Muslims’ equal protection under the law, promised to revive torture the use of torture, stop and frisk and attacked Americans based on their gender, race and religion. He had also undermined critical democratic norms including peaceful debate and transitions of power, commitment to truth, freedom from foreign interference and abstention from the use of executive power for political retribution.”
If those assertions are true, they conjure up notions of a nation in crisis over its constitutional underpinnings and norms. But a constitutional crisis? Chacón demurs. Even in the wake of former F.B.I. director James Comey's firing and testimony before Senate members this week. Chacón suggests these are certainly "bad optics" and "serious ethical questions, but in my view this does not necessarily raise constitutional questions.”
Elizabeth Price Foley, Professor of Law at Florida International University agrees: “if there is any ongoing FBI investigation into any of Trump's associates, this investigation can and will continue unabated. This is far from a constitutional crisis— it is a confirmation that the Constitution is working exactly as it should.”
But those who sat on the sidelines earlier before jumping in with such characterization, are holding back no longer. “Anytime a sitting president fires the person responsible for investigating his campaign's potential criminal activities, it is a matter of grave public concern,” says David Cole is the National Legal Director of the ACLU. “When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it's a constitutional crisis.”
To quote CNN’s David Krieg, “the fact is that ‘constitutional crisis’ has no textbook definition.” But maybe that is why the concern posed by Robert Post, professor at Yale Law School, suggests that we are in the midst of a constitutional crisis, even when the branches of government appear to be in working order: the firing of FBI Director Comey, at a moment when Comey was investigating the president, is simply the latest and most egregious example of Trump’s disregard for appearances. If the president continues to act in this way, we shall rapidly descend into a terrifying state of social dissolution. The rule of law will disintegrate. That will endanger everyone who cares about this country. If ever there was a time for politicians to put the interests of the nation above those of partisan self-interest, it is now.”