“Constitutional crisis” is quite possibly one of the most overused (and misused) phrases in political commentary. Recently, pundits predicting the end of the world as we know it have, for a broad assortment of reasons, taken to calling Donald Trump’s victory a constitutional crisis. These reasons include the apparent unconstitutionality of some of his policy proposals, the potential for his personal financial interests to create conflicts of interest, and the alleged existential danger that his election poses for our democratic norms and traditions.
Trump may very well be uniquely unqualified to be the president, and will very likely damage our democracy and the nation’s material and foreign policy interests. But that does not imply that he is a one-man constitutional wrecking ball.
Political crises are often mistakenly called constitutional crises, especially if they involve constitutional matters such as impeachments or elections. However, the branches of government are constantly in conflict with each other. In fact, the system of checks and balances was designed to accommodate this type of normal political disagreement.
A true constitutional crisis occurs when the constitutional system is unable to adequately respond to political conflicts or exogenous crises, whether they are related to economic, environmental, or national security issues. Instead of abiding by this definition, pundits frequently label every political disagreement involving the Constitution a crisis.
Even if it seems inevitable to some that Trump will cause a political, ethical, or economic crisis, the system of checks and balances is robust enough to prevent such a situation from devolving into a constitutional crisis. Constitutional crises are truly exceptional events with consequences that are far more severe than the garden-variety crises that Trump may or may not cause.
Still, some may believe that the Trump administration will indeed precipitate a constitutional crisis. It might help to consider a hypothetical example of what a true crisis looks like.
In the most serious type of constitutional crisis, two opposing factions disagree about which course of action is constitutionally correct and seek recourse outside the established system. In this situation, Party A and Party B both believe they are correct and accuse their adversaries of violating the Constitution. However, mere disagreement over constitutional matters is not a sufficient condition for a constitutional crisis, but rather a constant feature of political life. For this disagreement to devolve into a constitutional crisis, either Party A or Party B would have to resort to unconventional and extreme measures, such as force, to prove their point. The most obvious and exceptional example of this type of situation in American history is the Civil War.
A similar situation is unlikely to occur during Trump’s presidency, primarily because Congress could impeach him before he triggered a true crisis. The Civil War arose from disputes over federalism and the proper division of power between the states and the federal government, while a Trump-induced crisis would presumably arise from conflict between Trump and either Congress or the Supreme Court. This important distinction means Congress would be able to use its impeachment power to check President Trump, whereas the Union government had no legal recourse to check the secessionist states. If Trump took actions that undermined the constitutional order or even posed a serious threat of doing so, Congress would have a powerful check against him without having to resort to the threat or use of force. Even though Congress has a Republican majority, congressional leaders have made it clear that they intend to pursue their own agenda and not blindly follow President Trump’s lead.
Although impeachments are political crises of the highest magnitude, they are not necessarily constitutional crises. An impeachment can show that the system of checks and balances is, in fact, working properly. Indeed, Congress’ removal power was designed to allow the legislative branch to oust a president who damages the constitutional system. What would be a constitutional crisis would be if Trump were impeached, and then he refused to accept the results. Trump would assert that he is the legitimate president (conceivably because the Senate trial was “rigged” against him), and there would be two competing claims about who was the legitimate president. However, this situation is extremely unlikely to occur because Congress’ authority to impeach the president has so far gone unquestioned.
While many pundits and commentators, especially those on the political left, have sounded warnings about the impending doom about to befall our constitutional system, these predictions are alarmist rhetoric. People tend to use the phrase “constitutional crisis” in situations that do not meet the criteria because they are afraid that the current conflict will evolve into a true crisis. The alarm sounding and accusations flying that Trump will cause a constitutional crisis are symptoms of the same phenomenon. While Trump’s presidency may well be an unmitigated political and economic disaster, that alone is not enough to make Trump a harbinger of constitutional disaster.