In the last three weeks, Donald Trump has wreaked havoc on the American constitutional order. His actions have encroached on Congress' domain, and his administration is ignoring court orders. When the executive branch usurps the powers of the other two branches, that violates the separation of powers and creates the most stark constitutional crisis imaginable.
So why won’t anyone say it? Neither the mainstream media nor Democratic elected officials seem capable of calling this what it is. Instead, we have the surreal occurrence of media outlets accurately describing how the administration’s actions violate the Constitution, followed by vague hand-waving about how maybe that means a constitutional crisis will happen at some as-yet-undefined point in the future.
Take NBC News’ coverage of the Federal Emergency Management Agency continuing to freeze funding despite not one but two court orders telling them to knock it off. By any measure, the executive branch just straight-up ignoring the authority of the judicial branch is an actual factual constitutional crisis.
But NBC twists itself in knots, framing the issue as one about federal employees being caught between Trump’s demands and court orders, saying those officials are “at the ground level of a potential constitutional crisis in which Trump is claiming expansive powers that test traditional limits on the president’s authority and could circumscribe the roles of Congress and the courts.”
Besides the clunky hedging – what does it mean to be on the ground level of a potential crisis? Do crises have floors to ascend? This is a wildly odd framing. It puts the onus for the crisis on the people carrying out Trump’s orders rather than Trump himself. It also frames Trump as chafing against some vague “traditional limits” because the piece is unwilling to speak plainly.
Other outlets hedge by misstating what is happening. On Wednesday, the Washington Post talked about the consequences of Trump ignoring court orders but framed that as something that is not yet occurring: “Should the Trump administration begin openly defying court orders, the country could be barreling toward a constitutional crisis, legal experts warn.”
The administration is already openly defying court orders. A court literally already said so, with Judge John J. McConnell Jr., a Rhode Island federal court judge, ruling that the administration ignored his previous order and continued to freeze some federal funding.
Yes, other presidents have slow-walked implementations of court orders and have publicly complained about rulings, but that’s not what is going on here.
Imagine President Joe Biden, who routinely got kicked in the teeth by conservative courts, asserting that courts can’t tell him what to do and threatening the judges themselves.
That’s what Trump did on Tuesday, complaining that “it seems hard to believe that a judge could say, ‘We don’t want you to do that.’ So maybe we have to look at the judges. ‘Cause I think that’s a very serious violation.”
That’s been JD Vance’s stance for a while now, even before joining the Trump ticket. He believes the real constitutional crisis is when the Supreme Court steps in and tells the president he can’t do something. After Trump suffered a spate of adverse rulings, Vance took to X to gripe that “judges aren’t allowed to control the executive’s legitimate power.”
That’s a true statement in that it would be an overreach for the judicial branch to limit the executive branch’s legitimate authority. The issue here is that Trump and Vance don’t believe there are any limits on their authority and that only they define what is “legitimate.” They are so committed to that view that they won’t even respect court rulings that only temporarily pause their efforts while cases proceed.
The administration is equally committed to commandeering power that belongs, under the Constitution, only to the legislative branch. Only Congress has the power of the purse or authority over taxing and spending.
But Trump and Elon Musk have unilaterally frozen billions of dollars already allocated by Congress, violating the separation of powers.
The founders gave this authority to the legislative branch for a reason. It’s the branch of government closest to the people and, therefore, most directly representative of and responsive to the electorate’s wishes.
To let the executive branch decide how to spend the government’s money is to place that control in the hands of unelected bureaucrats. That’s a thing that Republicans have always railed against, but they seem perfectly happy to let the ultimate unelected bureaucrat, Musk, single-handedly decide where all our taxpayer money goes, even while acknowledging that it is unconstitutional.
Trump has also defied the separation of powers by unilaterally shuttering government agencies created by acts of Congress. The United States Agency for International Development is functionally gone, as is the Consumer Financial Protection Bureau. The executive branch can’t undo acts of Congress via the stroke of a pen or by starving agencies of funding, but that’s what Trump is doing nonetheless.
Instead of a five-alarm fire over this in the media, we get euphemisms. Trump and Musk are “flex[ing] their power” and “test[ing] limits.”
Elected officials are no better. Even Massachusetts Sen. Elizabeth Warren, someone not typically given to mealy-mouthed descriptions, could only muster a statement that “[w]e’ve got our toes right on the edge of a constitutional crisis here,” making the constitutional crisis sound vaguely like a surfboard we’re all clinging to.
New Jersey Sen. Andy Kim told PBS on Tuesday that the administration was “engaged in lawless activity through unilateral executive branch action” but still placed the constitutional crisis in some hypothetical future: “I'm not sure that this executive branch, this administration will follow the law, even when given a court order to do so, given the vice president's statements about how they don't feel like they need to follow through with the orders of these judges. That's deeply alarming. That actually would be a full-blown constitutional crisis then.”
Senate Minority Leader Chuck Schumer wrote a lengthy letter detailing all the administration’s misdeeds, including firing independent watchdogs, illegally terminating public servants, and suspending entire government programs. At no point did Schumer mention the constitution or separation of powers. Instead, he went on about how Trump’s actions don’t help working families and declared that he is “hopeful the law and our system of justice will prevail.”
It all feels reminiscent of Trump’s first term, when the media went to comical lengths to avoid saying Trump was lying. Instead, we got things like “demonstrable falsehoods” and “over-broad boasts.” That persistent failure to grapple with the fact the president outright lied thousands of times, to call it what it was, is what got us here today.
The constitutional crisis we’re facing isn’t just about Trump running roughshod over separation of powers. It’s also about the fact that the courts lack adequate enforcement mechanisms when the president refuses to follow the law.
Yes, courts could threaten to hold Justice Department attorneys in contempt for the administration’s failure to follow court orders, and they could do the same with high-level officials who are ignoring rulings.
But, as Yale Law School professor Cristina Rodríguez, an expert on the separation of powers, explained to the New Yorker, holding officials in contempt is rare, with the Supreme Court having done so only once. Additionally, though contempt sanctions could include fines and imprisonment, Rodríguez noted those are not often used, particularly against government officials, because those officials have potential claims of immunity.
And then there’s the broad, unprecedented immunity the conservative majority on the Supreme Court handed to Trump last year. Even if the Roberts court grows a spine and restores some constitutional order, that likely wouldn’t come with any consequences for Trump himself.
The constitutional crisis isn’t around the corner. It isn’t barreling toward us. It’s right here, right now, and no one with a microphone or power seems equipped to handle it.
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Written by Lisa Needham. Cross-posted from Daily Kos.
