The current topic of discussion is deportations, but throughout Donald Trump’s presidency, the question of whether or not the president is acting within the Constitution has persisted.
Attempts to halt an FBI investigation, his administration’s refusal to comply with subpoenas, and his attempt to remain in office following an electoral defeat all brought it up several times throughout his first term.
The Trump administration has now sent a large number of people, largely from Venezuela, to a contentious El Salvadorian jail after invoking wartime powers to deport them.
A sobbing laughing emoji and the words “Oopsie… Too late” were the messages sent by the planes transporting the deportees after a federal judge ordered them to return to their original destinations.
That was the sarcastic post made by Trump friend and strongman president of El Salvador, Nayib Bukele, on Elon Musk’s X.
The deportees, who will be held in El Salvador for a year, were reportedly led into the prison while having their heads and faces chopped off, according to videos shared by Bukele and the White House account.
US District Judge James Boasberg’s decision came after Trump’s lawyers took the matter more seriously, claiming that the individuals in issue had previously been deported. It has been attempted by AWN to recreate the precise chronology.
Still, a court issued an order, and Trump’s administration disregarded it, thereby ushering in a new age of debate about whether or not the United States is really experiencing a constitutional crisis.
A constitutional crisis is defined.
No one can agree on what constitutes a constitutional crisis in the United States, and the term is not defined with precision.
In the United States of America, the fundamental tenet of governance is the separation of powers among three equal departments.
Two Yale law professors, Sanford Levinson and Jack Balkin, used the phrase “constitutional crisis” in 2009 to characterize times when the government’s institutions were obviously at odds with one another.
“Promiscuous use of the term” is their argument, nevertheless.
“Crisis cannot be defined by the mere existence of conflict, even profound conflict,” they said. “Conflicts arise constantly among government institutions.”
The system becomes unbalanced if one branch entirely stops respecting checks.
“Where we get into real trouble is if there is open, willing defiance of a court order,” stated Elie Honig, AWN’s senior legal expert, during his appearance on Monday’s AWN Max. A constitutional crisis is a term that people use. That expression makes me uneasy. There we are, nevertheless, if we openly rebel.
Has the Trump administration disregarded the court’s rulings?
Although it is not officially asserting its ability to simply ignore the court’s rulings, the Trump administration appears to be toying with the notion.
President Trump’s advisor Stephen Miller said during a heated debate with AWN’s Kasie Hunt on Monday’s “The Arena” that a district court judge cannot do more than control the deployment of Air Force One or prohibit the removal of foreign terrorists to foreign land.
The specifics of the order’s issuance date and the administration’s ability or lack thereof to turn the planes around are sure to spark further controversy.
What is expected to transpire?
The government does have options, according to Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, in the event that it disagrees with a court’s decision.
She explained on AWN Max that the president can challenge the decision by appealing, possibly even filing an emergency appeal. However, she emphasized that defying the order is not an option. It’s the purpose of checks and balances. The president will be unable to sit as the arbiter of his own conduct, according to this.
If this isn’t a constitutional crisis, then what is?
On Monday, John Yoo, a law professor at Berkeley who served in the Bush administration and has a broad interpretation of executive power, stated his belief that the United States is not facing a constitutional crisis at the present time. Yoo contended that presidents will inevitably face opposition from Congress and the courts.
In my follow-up email, I inquired as to Yoo’s interpretation of the phrase.
“I must admit, I am not entirely clear on what constitutes a constitutional crisis,” he said, while also stating that he had firm beliefs about the following:
The dispute must include more than simply competing interpretations of the Constitution. This can’t be reduced to a power struggle between different government agencies. These disagreements arise frequently, and according to James Madison, the founders intentionally created the division of powers so that the three branches would be more motivated to battle with one another.
Yoo, a visiting researcher at UT Austin, has a different take on things. He informed me that current assertions of a constitutional crisis “are examples of the hyper-partisan policies of our time than any real assault on the Constitution.”
‘Hardball within the Constitution’
since I was speaking with Levinson during Trump’s first presidency, he informed me that the Constitution itself contains a crisis, since he had co-authored a 2009 article attempting to describe one.
“The Constitution itself is a crisis,” Levinson said me in 2019. He explained that it establishes a complex system of checks and balances, which may become a never-ending game of ping-pong.
Quite a change in Trump’s second term in office
I contacted Levinson to inquire about any developments throughout the previous six years.
“Constitutional hardball, which is the willingness to take advantage of every last legal possibility or technicality you try to score points for your political party,” Levinson put it, even if the United States isn’t now experiencing a constitutional crisis. We are undoubtedly a part of that culture.
A significant change has taken place in Congress since the beginning of Trump 2.0, according to Levinson, who pointed to the “total and complete collapse of Congress as a genuine institution of governance.”
“I think really is a cult of personality,” he said, adding that even Republicans who would have opposed Trump on some grounds six years ago have done so.
It all comes down to the Republican response in the event that Trump willfully disregards judicial orders.
The subject of whether Trump disobeys courts is what keeps Senate Minority Leader Chuck Schumer awake “2, 3 in the morning,” as he told the New York Times.
According to Schumer, a small number of his Republican senatorial colleagues will “stand up” on this matter. Just over half of them have openly stated their intention to fight against Trump’s attempts to undermine the judiciary and the rule of law. And if necessary, we can do it through legislation.
