When to Use 'Constitutional Crisis'

The difference between "threat inflation" and "real threat" is merely time.

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Editor’s note

Everything You Wanted to Know about Impeachment, But Were Afraid to Ask” is a program I’m hosting next week here in New Haven. My guest will be Bill Scher, contributing editor for POLITICO Magazine and RealClearPolitics.com. We’re going to fight (mostly civilly) about the possibilities, prospects, and politics of impeachment.

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WHAT: “Politics in Plain English.”
WHEN: Tuesday, May 14, 7:30 p.m.
WHERE: The Institute Library, 847 Chapel St., New Haven.
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Digital media probably takes more than it gives, but one of the blessings of our atomized age is the abundance and quality of public commentary by political scientists. They know a thing or two the rest of us don’t. Among those is an informed understanding of what constitutes a constitutional crisis. It’s not what you think.

A real constitutional crisis is not what we’re seeing now (not yet anyway). We’re seeing a historically routine conflict between two of three branches of government. The Constitution was not designed to prevent conflict. To the contrary, it was designed to encourage it, as the framers agreed with Montesquieu in thinking the best way to keep power in check was to separate it. The result has been a kind of face-off in which the branches taunt each other. The outcome of a conflict might lead to a crisis, but the mere presence of conflict should not be confused with an actual constitutional crisis.

As political scientists Julia Azari and Seth Masket wrote in a now-classic post, “serious constitutional crises occur when our institutions are rendered ineffective, which is usually about politics more than process, and often has less to do with how institutions were designed than with how legitimate they are perceived to be.”


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On the one hand, I agree. We shouldn’t inflate the threat of crisis. On the other, I disagree. We in the public square—that includes political scientists—must get people to understand what the president is doing. Donald Trump is mounting an assault on House authority. If the House returns fire, which it appears ready to do, that’s routine, historically speaking, It’s also entirely appropriate, constitutionally speaking.

Politically speaking, Democratic partisans have an interest in heightening the conflict between the branches, because they fear the party’s leadership won’t rise to the occasion. They’re afraid they will file another lawsuit, and thus cede opportunity and power to the vagaries of unelected federal judges. In alleging that a “constitutional crisis” is imminent, partisans are in effect calling on their leaders to fight hard.

Moreover, the difference between “threat inflation” and “real threat” may be just a matter of time. Say, for instance, the House Democrats complete an impeachment inquiry that finds the president deserving of indictment for an array of high crimes and misdemeanors. Most people would expect the process to move to the Senate, which would then conduct a trial. But the constitution does not require any such thing.

Most of us (myself included) have presumed in our discussions of impeachment that the Senate would pick up where the House left off. Not necessarily so. The only thing the Constitution says is that the Senate has the “sole power” to try an impeached official. Senate rules could force the matter, but those rules can be changed with a majority vote. Since the Republicans hold the majority, they can change the rules. Anyway, the Senate can’t convict if it’s not in session. It can simply adjourn for months. Then Trump’s impeachment would void at the end this Congress in 2021.


An inter-branch conflict could morph into an intra-branch conflict, which could then metastasize into a full-on constitutional crisis.


We therefore have potential for an inter-branch conflict to morph into an intra-branch conflict, which could then metastasize into a full-on constitutional crisis in which “institutions are rendered ineffective,” as Azari and Masket wrote in 2017, thus deepening the already deep sense that Washington does not serve democracy.

The House could impeach the president in order to protect its authority only to see the Senate abandon its authority in order to protect the president. I defer to political scientists who say true constitutional crises are rare, but a Senate selling off its constitutional raison d'etat for partisan gain seems kinda sorta like a true crisis.

The only thing the House Democrats could do at that point is what Democratic partisans had wanted all along, which was bringing the fight out in the open. Or as Lawfare’s Bob Bauer put it: They “can only respond to this initiative through the application of public pressure and the threat of harsh electoral justice meted out in the next election.” That’s unlikely given Senate Majority Leader Mitch McConnell led an effort to steal a Supreme Court seat from Barack Obama, and never suffered for it.

I don’t see how the Democrats can allow Trump to go unchecked. I don’t know if the Republicans will go along. But the key is getting the public to understand just what this president is doing. If that means overusing “constitutional crisis,” so be it.

—John Stoehr

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IN CASE YOU MISSED IT

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MONDAY
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TUESDAY
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But do it in ways that bring the public with them.

WEDNESDAY
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THURSDAY
Impeachment Without Conviction? Yes (public)
Trump's fate is less important than "the message sent."

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