Are We in a Constitutional Crisis?

Is there a constitutional crisis? The question cannot be answered without understanding what such a “crisis” might be. Some legal scholars have usefully identified three main types. 

One occurs when political leaders publicly proclaim the right to suspend constitutional features to meet national emergencies. A second arises when constitutional actors persevere in executing what they see as their duties or staying within what they see as the limits of their powers, even though the consequences are ruinous.  A third exists when public disagreements over the meaning of the Constitution lead to extraordinary forms of protest: armies are mobilized, and brute force or violent mass demonstrations are staged to prevail.

The United States is not in the throes of any such crisis. Nor are we about to be plunged into one. While constitutional alarmism may make alluring anti-Trump clickbait, it simply does not correspond to reality. 

President Trump has not proclaimed that he intends to suspend any constitutional features in the name of the public good or necessity. While the Trump Administration is indeed engaged in defending lawsuits challenging the legality of many early actions – and has already lost a number of them in the courts – Trump has never indicated that he intends to defy adverse court rulings. Indeed, he has affirmed explicitly that he will seek review of adverse decisions through the normal appellate process. And that is what his Administration has done.

To illustrate: on March 5, the Supreme Court, over strong dissent from four Justices, handed the Trump Administration a defeat in Department of State v.  AIDS Vaccine Advocacy Coalition. In that case, the Supreme Court granted the Administration an emergency appeal of a temporary restraining order (TRO) by a district judge, ordering the Administration to resume certain payments of foreign development assistance funds. “TROs” are ordinarily not appealable, but the Administration argued that an appeal should be allowed despite the legal label that the district court had given (probably disingenuously) to its order. The Administration argued that compliance with the lower court order in the time frame that the court had set was simply not feasible and could result in the unrecoverable loss of $2 billion in public money. Whatever the merits of the Supreme Court’s ruling (in my opinion, the dissenters had the far better argument), the Court noted that the Administration’s application for review “does not challenge the Government’s obligation to follow” the TRO. In other words, the Administration was following the normal process of seeking review of adverse judicial decisions – not threatening to defy them. 

A True Constitutional Crisis: The Gold Clause Cases

What would a genuine constitutional crisis look like? Consider an episode from early in President Franklin Roosevelt’s first term.

FDR had taken office when the country was grappling with a deep Depression. He was facing powerful political pressures to bring relief to distressed debtors, especially farmers. He and Congress adopted measures designed to increase domestic prices for agricultural products and to devalue the currency, enabling farmers to meet their obligations to creditors more easily. Among these measures was Joint Resolution No. 10, enacted on June 5, 1933.  This statute annulled all “gold clauses” in private and public contracts.

 “Gold clauses” had been included in most bonds and mortgages since the Civil War. They were designed to protect creditors against the risk of being repaid in devalued paper currency by enabling them to demand payment in fixed amounts of gold or gold equivalents. Creditors sued, challenging the annulment of gold clauses and other forms of debt relief as unconstitutional.

In early 1935, in a trio of 5-4 decisions written by Chief Justice Charles Evans Hughes, the Supreme Court upheld FDR’s actions. In Perry v. US (1935), the Court ruled that while the abrogation of gold clauses in private contracts was constitutional, the Joint Resolution was unconstitutional regarding the government’s debt. Hughes, however, accepted the Roosevelt Administration’s secondary argument that the holders of public debt had suffered no losses because they were being paid in dollars that (owing to deflation) had risen in value. Thus, the Court finessed the most critical issue. 

Before the Court’s decisions were announced, FDR and his close advisors feared that the Court would rule against the Administration. If the ruling was unfavorable, they believed it could not only plunge the country into a deeper Depression but also cause FDR severe political damage, especially at the hands of his populist opponent, Senator Huey Long. FDR’s advisor (later Supreme Court Justice) Robert Jackson wrote, “[t]he President was greatly concerned about the possible outcome . . . and was quite determined that he just could not accept an adverse decision.”

FDR began to make contingency plans in the event of a Supreme Court defeat. He drafted a “fireside chat” for delivery to the nation.  He was prepared to say that “[i]f the policy of the government … is to be irrevocably fixed by decisions of the Supreme Court, the people would have ceased to be their own rulers.” He wrote that “legislative and executive officers must look beyond the narrow letter.” After reading his draft to his Treasury Secretary, FDR said he had been told that “the statement is so strong they will burn the Supreme Court in effigy.”

FDR contemplated other extreme, and doubtfully legal, measures. After the oral argument, he asked his Secretary of the Treasury if he would take deliberate actions to rattle the financial markets, thus making it politically easier for FDR to refuse to enforce an adverse decision. He prepared to close the financial markets if the Justices struck down the Joint Resolution. Jackson came up with the idea of enacting a statute barring bondholder suits by invoking statutory immunity, and an emergency decree was prepared ordering no payments to be made under a gold clause for 90 days, i.e., until after that statute had been passed. FDR’s Attorney General, Homer Cummings, suggested that the Court should be immediately packed to get a favorable ruling. 

Because of Perry’s outcome, none of these contingencies came to pass, and the country was spared what would unquestionably have been a true “constitutional crisis.” Those who claim that we are in (or heading towards) such a crisis need to tell us what evidence they have that Trump is preparing to act as FDR might have.

Who Has the Last Word on the Constitution?

None of this is to say that the Supreme Court must have the last word on the meaning of the Constitution. The Judiciary is “supreme,” but only within its proper sphere. To conflate the Court’s constitutional case law with the Constitution itself is not only mistaken but also contrary to our constitutional tradition.

The Republican Party platform of 1860 (the year in which Abraham Lincoln, the first Republican president, was elected), although neglected, is one of the most important political documents in our national history. Squarely in the middle of this document, the new party declared its opposition to the Supreme Court’s 1857 Dred Scott decision. Chief Justice Taney’s opinion in Dred Scott (joined by another Justice) held that the Constitution prohibited Congress from banning slavery in the territories, including much of the American West. The Republican platform rejected that consequence, denouncing “the new dogma that the Constitution, of its own force, carries slavery into any or all of the territories of the United States,” as “a dangerous political heresy.” It proclaimed it “our duty, by legislation, whenever such legislation is necessary, to maintain this provision [the Fifth Amendment due process clause] of the Constitution against all attempts to violate it.” During the Civil War, Lincoln’s Attorney General, Edward Bates, issued an opinion affirming the birthright citizenship of free, native-born African Americans, rebuffing Taney.

Presidents have continued to resist the Supreme Court. In his 2010 State of the Union Address, President Obama denounced the Court’s campaign finance decision in Citizens United (2010), urged Congress to find a legislative work-around, and claimed that “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.”  President Biden argued that the Court had “misinterpreted the Constitution” in Biden v. Nebraska (2023) when it rejected his original $400 billion student debt cancellation plan. Biden thereafter devised other student debt relief programs designed to get around the Court’s decision. “I won’t back down from using every tool at my disposal to deliver student debt relief to more Americans,” Biden said. (On February 18, the Eighth Circuit invalidated one of these later programs.) 

Like these other Presidents, Trump has a right to defend his interpretation of the Constitution. While he is bound to respect the Court’s ruling in particular cases, he is free to seek corrective legislation, offer amendments, use executive powers in support of his views, or ask the Court to overrule its constitutional precedents.

If the Trump Administration deliberately litigates constitutional precedents, there is no “crisis.” In fact, this is a normal constitutional colloquy between the executive and judicial branches. 

Plenty of smoke here. But no fire.

Robert Delahunty is a Washington Fellow at The Claremont Institute’s Center for the American Way of Life. He was LeJeune Chair and Professor of Law at the University of St. Thomas School of Law in Minneapolis, Minnesota.