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There is no universally accepted definition of a constitutional crisis, but legal researchers agree on some of its characteristics. It is generally the product of the presidential challenge of laws and judicial decisions. It is not binary: it is a slope, not a switch. It can be cumulative, and once you start, it can get worse.
This can also be obvious, said Erwin Chemerinsky, dean of the law faculty of the University of California in Berkeley.
“We are currently in the midst of a constitutional crisis,” he said on Friday. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We have never seen anything like this.
He checked examples of what he called the Drive without the right of President Trump: to revoke the citizenship of the dawn, to freeze federal spending, to close an agency, to abolish managers from other agencies, to dismiss employees of the employees of Government subject to public service protections and threaten to expel people according to their political opinions.
This is a partial list, said Professor Chemerinsky, and this is developing day by day. “Unconstitutional and illegal systematic acts create a constitutional crisis,” he said.
The distinctive characteristic of the current situation, said several legal scholars, is its chaotic flood of activity which is collectively equivalent to a radically new conception of the presidential power. But the volume and speed of these actions can overwhelm and therefore thwart the sober and measure judicial consideration.
It will take some time, but perhaps only weeks, for a challenge to one of Mr. Trump’s actions to reach the Supreme Court. A federal judge said on Monday that the White House had challenged his order To release billions of dollars from federal subsidies, marking the first time that a judge expressly declared that the Trump administration is disobeying a judicial mandate.
He remains to be seen if Mr. Trump would challenge a decision against him by the judges.
“This is an open question if the administration will be as contemptuous towards the courts as the Congress and the Constitution,” said Kate Shaw, professor of law at the University of Pennsylvania. “At least so far, this is not the case.”
Professor Shaw said that a confrontation with the courts would only add to a crisis that is already underway. “A number of executive decrees of the new administration and other executive actions are in clear violation of the laws adopted by the congress,” she said.
“The first movements of the administration,” she added, “also seems conceived to demonstrate a maximum contempt for fundamental constitutional values-the separation of powers, freedom of expression, equality of justice under of the law. “
Pamela Karlan, a law professor at Stanford, added that a crisis does not need to occur between branches of the federal government.
“It is a constitutional crisis when the President of the United States does not care what the Constitution says, that Congress or the courts resist a particular unconstitutional action,” she said. “Until now, when the presidents could engage in particular acts which were unconstitutional, I have never had the feeling that there was a president for whom the Constitution essentially had a meaning.”
The courts, in any event, may not be tilted or equipped to repel. So many things happen, and so quickly, that even possible final decisions of the Supreme Court rejecting Mr. Trump’s arguments could arrive too late. Once the American agency for international development or the financial protection office of consumers has been dismantled, for example, no court decision can recreate them.
In many cases, of course, the conservative majority of six members of the Supreme Court can be receptive to Mr. Trump’s arguments. It is Decision in July granting him substantial immunity Prosecutions have adopted an expansive vision of the presidency which can only enhance it.
The members of this majority are, for example, likely to kiss The post of president that he is free to dismiss leaders of independent agency.
The court could nevertheless issue an early and splashing decision against Mr. Trump to send a signal to his power and independence. Mr. Trump’s order has ordered managers to deny citizenship to immigrant children seems to be a good candidate, because it is in contradiction with the conventional understanding of the Constitution and the precedents of the Court.
Such a decision would have an additional advantage: it would be difficult to disobey. From its early days, the Supreme Court was wary of making decisions that could be ignored.
“I remember Marbury c. MadisonWhen the government did not even take the trouble to appear before the Supreme Court to defend its position – strongly suggesting that it would flout any orders for the court, “said Amanda Frost, professor of law at the University of Virginia.
Even if the court judged that the administration of Thomas Jefferson had acted illegally, it said: “The court carefully designed its opinion in this case to avoid a decision requiring the compliance of the executive branches.”
Many has changed since this decision of 1803, and the stature and authority of the Supreme Court increased. “Nevertheless,” said Professor Frost, “the Supreme Court may find it difficult to defend the laws that Congress has promulgated against executive usurpation when the Congress controlled by the Republican refuses to do the same.”
Professor Karlan said that she feared that the judges will decide on Trump to fear that he will ignore the decisions to reject his posts. “The idea that the courts should preserve the illusion of power by abdicating their responsibilities would only aggravate the constitutional crisis,” she said.
Mr. Trump has already ignored a decision of the Supreme Court, His decision last month Strengthen a federal law, adopted by unbalanced bipartisan majorities, demanding that Tiktok be sold or prohibited. Mr. Trump instead ordered the Ministry of Justice Do not enforce the law for 75 days, citing as an authority for the decision of “its single constitutional responsibility for the national security of the United States”.
The challenge of decisions of the Supreme Court is not unknown. South States, for example, have refused for years to follow Brown c. Board of EducationThe 1954 decision which prohibited segregation in public schools, engaging in what was known as “massive resistance”.
The brown decision is now almost universally considered as an imposing achievement. But his application forced President Dwight D. Eisenhower to decide to send members of the 101st air division to Little Rock, Ark., To escort black students through an angry white crowd.
Not all presidents have given the same respect for the court. In 1832, President Andrew Jackson refused to apply A Supreme Court decision resulting from a confrontation between Georgia and the Cherokee nation. A comment probably apocryphal but nevertheless powerful is often attributed to Jackson about the chief judge John Marshall: “John Marshall made his decision; Now let it apply it.
Even before this weekend, Mr. Vance said that Mr. Trump should ignore the Supreme Court. In an interview in 2021, he declared that Mr. Trump should “dismiss each bureaucrat of average level, all civil servants of the administrative state” and “replace them with our people”.
He added: “When the courts stop you, stand before the country as Andrew Jackson did and said:” The chief judge made his decision. Now let it apply it. “”
Chief judge John G. Roberts Jr. took note of these threats His end -of -year report in December.
“Each administration undergoes defeats in the judicial system-sometimes in cases of major ramifications for the executive or legislative power or other consecutive subjects,” he wrote. “However, in recent decades, the decisions of the courts, popular or not, have been followed, and the nation avoided the confrontations which tormented the 1950s and 1960s.”
“In recent years, however,” continued the chief judge, “the elected officials of the whole political spectrum have raised the spectrum of open contempt for the decisions of the federal courts. These dangerous, so sporadic suggestions should be rejected deeply. »»
This view has many supporters, although some use warnings. “It would be an extremely serious affair for a president to challenge a real order (not widespread, in fact) of a federal court in a case which is undoubtedly in the court of the court”, Ed Whelan, a conservative legal commentator, written on social networks.
But given the discreet clashes, it can be useful on an obsolete paradigm.
“One way to examine the assault of the administration against legal obstacles is that it seeks to establish the test cases ” to plead and win favorable decisions of the Supreme Court,” wrote Bob Bauer and Jack Goldsmith in their Executive functions Bulletin. “But the typical test case is a carefully developed and discreet challenge to the statutory law or manufactured by the judge with a basis in good faith.”
Mr. Goldsmith is a professor of law at Harvard and former head of the Ministry of Justice in the George W. Bush administration. Mr. Bauer was a White House lawyer for President Barack Obama. These are students of Article II of the Constitution, which defines the president’s powers.
Trump’s executive orders have characteristics suggesting that they mean testing legal theories at the Supreme Court, they wrote. “But overall,” they added, “they look more like parts of a program, in the form of distrust of law, for a mini constitution to” modify “article II on a Large front. “