A Constitutional Crisis
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What is a constitutional crisis?
Yeah, it sounds serious, doesn't it? It does. But I've been talking to a lot of law professors, and what emerges from those conversations is that there's no fixed, agreed-upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power. It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend. And it takes on a quality of danger if there's a lot of it.
So given that loose definition that seems to acknowledge the fluidity of a constitutional crisis, how should we think about whether President Trump's actions over the past few weeks represent a constitutional crisis or perhaps something else, something less serious?
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that. The president will often use his power to its fullest extent to assert a constitutional authority to do things that other branches may oppose.
How is President Trump challenging the separation of powers?
But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power that asserts that he's basically the decision maker, that he can act alone. He can disregard instructions from Congress. And Congress is in Article I. Congress makes the law. That sounds significant. The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump's actions over the past several weeks has been quite different, has meant to insist on his primacy.
Well, Adam, walk us through some of the specific examples of how President Trump is muddling with our traditional notions of Article I, Article II, basically the separation of powers between the legislative and executive branch and how he is trying to expand the powers of the executive.
What are examples of Trump's executive overreach?
So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as head of the executive branch, he can fire whomever he will. Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it, that Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse.
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Chapters
5 chapters
1
What is a constitutional crisis?
2:16–3:57
2
How is President Trump challenging the separation of powers?
3:57–5:08
3
What are examples of Trump's executive overreach?
5:08–9:52
4
How might the courts respond to Trump's actions?
9:52–12:13
5
What has been the judicial response to Trump's executive actions?
12:13–26:06
Speakers
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