Closer to a "Constitutional Crisis." No Closer to Clear Explanation of Why That Matters
I wrote in February that pundits need to abandon insider jargon like “we’re on the cusp of a constitutional crisis!!” if they want voters to pay attention to the fact that we are, in fact, nearing a constitutional crisis.
“True enough,” I wrote, “but doesn’t resonate.”
The crisis has deepened, but our ability to communicate about the real-world impacts of such an abstract concept hasn’t improved.
Here’s an excerpt from a NY Times article being heralded as “must-read” analysis:
The line between arguments in support of a claimed right to disobey court orders and outright defiance has become gossamer thin, [legal experts] said, again raising the question of whether the latest clash between President Trump and the judiciary amounts to a constitutional crisis.
Legal scholars say that is no longer the right inquiry. Mr. Trump is already undercutting the separation of powers at the heart of the constitutional system….
Clear as mud.
Democrats, meanwhile, are still infighting over their failure to stand up to Trump’s spending bill and are missing another chance to meaningfully engage. Business leaders and influencers are having a contest to see who can stay silent the longest.
Here’s my attempt to plainly define a constitutional crisis, show that we’re in one, and give examples of what that means for voters, business leaders, and nonprofits.
What’s a Basic Definition of a Constitutional Crisis?
Scholars write entire books on this question.
My answer: it's when one branch of government no longer follows checks and balances and separation of powers so it can seize more power for itself.
Currently, it's a court ordering the Trump Administration to do something or not do something, and the Administration refusing to comply with that order.
What’s the Latest Evidence of a Constitutional Crisis?
As TIME magazine wrote on Monday,
The Trump Administration appeared to openly defy multiple court orders [last] weekend, deepening concerns among Democrats and legal experts that the constitutional crisis many feared… has now arrived.
TIME provided evidence that the Administration is defying court orders related to halting deportations.
More concern arose when a judge in those cases demanded to know whether the government violated his order to halt deportations. Rather than willingly appear at the hearing, the Administration made the unprecedented move of telling the court to just cancel the hearing because they didn’t violate the order and weren’t going to answer any questions about it.
What Examples Illustrate the Real-World Impacts of a Constitutional Crisis?
Imagine you work for a nonprofit focused on voting, reproductive, or disability rights. The IRS selects your organization for audit, and because your programs “violate President Trump’s DEI Executive Orders” they freeze your bank accounts pending the outcome of the audit. You rush to court, and the court orders the government to unfreeze your funds. However, the government refuses to comply with the order for several months. By that time you’ve been laid off because the organization couldn’t make payroll with its funds frozen.
Image the company you work for has used the legal services of its favorite law firm for decades. The Trump Administration recently punished the law firm by banning it from federal courthouses, but the firm got a restraining order saying it’s still allowed inside courthouses. Despite the restraining order, courthouse security refuses to allow your lawyers in the building on the day of a major hearing. The court enters a judgment against your company for failure to appear, costing millions and resulting in layoffs.
Imagine you’re a small business owner. Your lease on the building that serves as your storefront and warehouse to fulfill online orders requires the landlord to take care of maintenance and repairs such as ceiling leaks. There’s a snowstorm, and when the snow melts a massive amount of water comes through the roof and makes the warehouse unusable just as your online sales skyrocket. The landlord drags her feet on repairs, so you get a court order requiring her to fix the roof or else pay up. She simply ignores the order, but later a post appears on her Facebook page saying, “If President Trump doesn’t have to follow court orders anymore, then neither do I.”
None of these examples has happened yet.
But any of them could become reality unless civil society — voters, business & nonprofit leaders, celebrities & influencers, the media — quickly begins to understand what’s at stake and starts to speak out against this Administration’s illegal power grab.
Author’s Note: Analysis similar to this post first appeared in my separate newsletter, Interested Parties, which I publish on LinkedIn. Interested Parties provides longer, more in-depth analysis for readers in the business, social impact, philanthropy, and legal fields. You can subscribe to Interested Parties on LinkedIn. Thanks!