The Volokh Conspiracy

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Separation of Powers

Wishing for a Constitutional Crisis

When politicians tell you we are in a constitutional crisis, you shouldn’t take it at face value.


I am currently finishing a book on the idea of constitutional crisis, the role it has played in recent American politics, and the ways in which it might be helpful in understanding the American constitutional experience. (I have written about the notion before; you can get a taste here and here.) As a result, I have mixed feelings about House Judiciary Committee Chairman Jerrold Nadler walking up to the assembled press corps and declaring, "We have talked for a long time about approaching a constitutional crisis. We are now in it. We are now in a constitutional crisis." On the one hand, I appreciate the cultural relevance. On the other hand, we are not now in a constitutional crisis.

As Nadler himself admits, "the phrase 'constitutional crisis' has been overused." And yet, and yet, he just can't help himself from reaching for it as well. The rhetoric of "constitutional crisis" is debased currency because it is used too often and in contexts that cannot possibly justify it. Nadler knows this, but he feels the same pull others have felt before him of insisting that this time is different, this time you should believe me, this time the sky really is falling.

He feels the need to elevate a relatively routine dispute over the scope of executive privilege into the last gasp of democracy. Only if the House gains access to the last few sentences under redaction in the Mueller report can America be spared the collapse of the republic and the ascension of a "monarchy." Only if Attorney General William Barr can be cross-examined by committee staff in a public hearing will we be able to avoid Donald Trump making "himself a king." Someone has been watching too much Game of Thrones.

Politicians have become incentivized to declare constitutional crises because it enhances their own importance as saviors and demonizes their opponents as illegitimate. The rhetoric of constitutional crisis attempts to short-circuit routine constitutional processes and justify extraordinary and extraconstitutional responses. Donald Trump has played this game as well. His closing pitch to the voters in the fall of 2016 emphasized the notion that they could not possibly vote for Hillary Clinton because doing so would cast us into a constitutional crisis. The "unprecedented and protracted constitutional crisis" he depicted for voters was the sad spectacle of a president struggling under criminal investigation and the threat of criminal indictment and impeachment. Only by electing Donald Trump could we avoid the horror of special counsel investigations and impeachment inquiries.

Special counsel investigations and impeachment inquiries are not a constitutional crisis. Assertions of executive privilege and stonewalling congressional investigators are not a constitutional crisis. This is how government officials are held accountable and how political disputes are played out in a fragmented constitutional system. As usual, Donald Trump is overplaying his hand, making assertions that cannot withstand scrutiny, and escalating the political rhetoric as he lashes out as his foes. If we took the president both seriously and literally, we might eventually get to a point of real crisis. But there is no reason to rush into things.