- Democrats and Republicans are debating over whether the US is in a constitutional crisis amid the ongoing, dramatic dispute over the Mueller report.
- The phrase “constitutional crisis” is overused and has multiple interpretations.
- “Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” according to the political scientist Keith Whittington.
- The political scientists Julia Azari and Seth Masket say there are four types of constitutional crises: when the Constitution doesn’t tell us what to do in a given situation, when the meaning of the Constitution is unclear and comes into question, when the Constitution provides guidelines on what to do but following through would be impractical or politically unfeasible, and when the government’s institutions and the Constitution’s system of checks and balances fail.
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Rep. Jerry Nadler, the House Judiciary Committee chairman, on Wednesday said the US is in a “constitutional crisis” because the White House has vowed to resist subpoenas related to the special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 US election.
After the House Judiciary Committee in a rare move on Wednesday voted to hold Attorney General William Barr in contempt for not complying with a subpoena for an unredacted version of Mueller’s report on the Russia probe, Nadler said, “We are now in a constitutional crisis.”
“Now is the time of testing whether we can keep our republic, or whether this republic is destined to change into a different, more tyrannical form of government,” Nadler added. “We must resist this.”
House Judiciary Committee chairman Jerrold Nadler (D-NY) tells reporters, "We are now in a constitutional crisis." pic.twitter.com/ZxgdJObpGM
— Steven Portnoy (@stevenportnoy) May 8, 2019
House Speaker Nancy Pelosi on Thursday morning said she agrees with Nadler that the US is in a “constitutional crisis.”
“The administration has decided they are not going to honor their oath of office,” she said.
Reporter: Do you agree with Chairman Nadler that America is currently in a constitutional crisis?
Speaker Pelosi: "Yes, I do agree with Chairman Nadler…" pic.twitter.com/HJWGQScM2X
— NBC Politics (@NBCPolitics) May 9, 2019
Meanwhile, Republicans such as Sen. Lindsey Graham of South Carolina are scoffing at Nadler’s assertion.
After the contempt vote on Wednesday, Graham tweeted, “What is going on in the House Judiciary Committee is not a constitutional crisis. It is a political stunt!”
Earlier in the day, Nadler conceded that the term “constitutional crisis” is “overused” but said we are in one because “the president is disobeying the law” and “refusing all information to Congress.”
The phrase “constitutional crisis” has come up a number of times since Trump entered the White House, perhaps most notably in relation to his travel ban and the firing of FBI Director James Comey.
In the divisive, chaotic political climate pervading the US, it can be difficult to know what it really means when people suggest there’s a “constitutional crisis.” And the truth is there’s no single or simple definition.
Generally speaking, a constitutional crisis occurs when one or more of the three branches of government challenges the others for supremacy and throws the US political system out of whack.
According to the political scientists Julia Azari and Seth Masket for FiveThirtyEight, there are four types of constitutional crises, and this is a good place to start when trying to grasp what people mean when they utter the phrase.
- When the Constitution doesn’t tell us what to do in a given situation.
- When the meaning of the Constitution is unclear and comes into question.
- When the Constitution provides guidelines on what to do but following through would be impractical or politically unfeasible.
- When the government’s institutions and the system of checks and balances provided by the Constitution fail.
The political scientist Keith Whittington also provided a useful summary of what might constitute a constitutional crisis in an examination of the subject not long after the impeachment of former President Bill Clinton.
“A political crisis becomes a constitutional crisis when not just a particular administration is put at risk, but the constitutional system itself is tested,” Whittington wrote. “To the extent that constitutional crisis is used to mean more than a particularly emphatic sense of political trouble, the term seems to be used to signal the threat of a breakdown in the constitutional order.”
“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” Whittington added.
He identified two types of constitutional crises: “operational crises and crises of fidelity.”
Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework,” Whittington said, and crises of fidelity arise “when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.”
In many ways, whether a constitutional crisis is occurring is in the eyes of the beholder. But two of the most prominent examples scholars tend to point to are the Civil War and the Great Depression.
The Civil War was, at its core, a fight over slavery, but it also sparked numerous constitutional questions and drastically changed the US Constitution. The Great Depression also catalyzed a multiplicity of questions about the Constitution, the scope of executive authority during times of economic strife (and more generally), and the nature of the Supreme Court.
So, while there’s no question that the legislative and executive branches are exhibiting historic levels of friction between one another at present, the question of whether the US is truly facing a constitutional crisis is far more complicated.