What is a “Constitutional Crisis”?

It’s Christmas in May for the drama queen set. Lots of opportunity to squeal about a supposed “constitutional crisis.”

Um, what, exactly, would constitute a “constitutional crisis”? No doubt different people, being different, would define it differently, but a “crisis,” according to Merriam-Webster, is “an unstable or crucial time or state of affairs in which a decisive change is impending; especially : one with the distinct possibility of a highly undesirable outcome.”

The decision of the so called President to fire the director of the FBI certainly seems to fit this definition. The unexpected firing of a high level federal official is almost certain to create some instability. When the high level official is in charge of investigating the person who fires him, and that person, in turn, seems to have had no plan at all for how others would respond, or even to have a very good grasp of the likely backlash, the likelihood of instability only grows.

So, sure, this looks like a crisis.

But what is a “constitutional crisis”? “Constitutional” obviously means, “of or having to do with the Constitution,” here, presumably, the United States Constitution.

It seems pretty clear that those who describe the firing of Comey as a “constitutional crisis” see that as a bad thing. No one has said, “Oh, goody! The so called President just created a constitutional crisis!” One certainly can criticize the U.S. Constitution. It is a human creation and is, thus, imperfect, no doubt. But it has endured more or less continuously since its adoption in 1789. Even its greatest apparent failure, the Civil War, was not really a failure of the Constitution itself. The Union continued to rely on it throughout the War, and the Constitution of the Confederacy was very similar to the U.S. Constitution, only with a few tweaks to protect slavery even more firmly.

So the “constitutional crisis” folks seem to want to defend and perpetuate the U.S. Constitution, more or less in its current form.

Presumably, then, a “constitutional crisis” is one either that threatens the continued operation of the Constitution, or that the Constitution offers no mechanism for dealing with.

It’s hard to see how the firing of Comey qualifies. To begin, for the President to fire the director of the FBI is, in itself, hardly a crisis per se. It is well within the powers of the presidency to hire and fire personnel at federal agencies. Indeed, it is a key responsibility of the job.

But this is no ordinary firing. It is the firing of the nation’s chief law enforcement officer by a President who has, in his short time in office, far exceeded all of his predecessors in creating all manner of suspicions about his unlawful conduct. But the Constitution provides an entirely adequate remedy for this situation, impeachment. That the Republicans who currently control the House of Representatives have evinced precisely zero inclination actually to impeach the so called President, despite his manifest malfeasance, is more a political than a constitutional, problem.

It is true that having one Party in control of nearly the entire federal government does have the effect of undermining the checking function of the separate branches, a problem the Founders failed to anticipate with their idealistic hope to avoid parties entirely. The Constitution provides no obvious remedy for this problem. So far, federal judges seem willing and able to adhere to their commitment to law above Party. The judge in Washington state whom the so called President disparaged as a “so called judge” after he issued a temporary restraining order against the Muslim ban owes his nomination to the bench to President George W. Bush and won confirmation in the Senate by a vote of 99 to zero.

As the Watergate scandal unfolded, Richard Nixon pursued to the Supreme Court his claim that some nebulous “executive privilege” should allow him to defy a subpoena for the recordings of his Oval Office conversations. The Supreme Court decided unanimously that he was wrong about this, so he acceded to their opinion and turned over transcripts of the recordings, which contributed materially to the decision of the House Judiciary Committee to vote out articles to impeach him.

Nixon understood politics far better than the so called President does. If the Russiagate investigation leads to a case before the Supreme Court to decide a dispute between the Donald and Congress, and the Court decides against the Donald, will he accept that decision and comply? One can easily see him refusing to do so.

That would be a constitutional crisis.


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