What Is a Constitutional Crisis?


Donald Trump Mitch McConnell Donald Trump Mitch McConnell
President Donald Trump is seen with Senate Majority Leader Mitch McConnell (L), and Sen. Roy Blunt (R-MO) at a Senate Republican weekly policy luncheon at the U.S. Capitol in Washington, D.C. Alex Wong/Getty Images

In American politics, the next crisis is never far away. Whether it's a big-headline scandal or a routine backroom arm-twisting, politics practically can't exist without some kind of daily drama. Heck, "The West Wing" and "House of Cards" taught us that.

The most Beltway-shaking of all these crises is the "constitutional crisis," an inexact term that seems to be applied with all the discretion of a pitch for campaign contributions. "There is hardly a disagreement in American law, however slight," law professors Sanford Levinson and Jack Balkin wrote — nearly 10 years ago — in the University of Pennsylvania Law Review, "that someone will not label a 'constitutional crisis.'"

Jerrold Nadler, chairman of the House Judiciary Committee, and Nancy Pelosi, Speaker of the House, are the latest politicians to wield the term. They and other Democrats are in (as they see it) a showdown with President Donald Trump over Congress' power of oversight, derived from the "legislative Powers" clause in Article I of the Constitution. From the House website:

Congressional investigations not only help legislators make better policy decisions, but they are central to the system of checks and balances. Investigatory hearings can uncover presidential abuses of power and corruption, such as the Teapot Dome scandal in the 1920s or Watergate in the 1970s.

Checks and Balances

When Nadler and the Judiciary Committee decided to hold Attorney General William Barr in contempt of Congress for his failure to produce documents pertaining to special counsel Robert Mueller's nearly two-year investigation into Russian interference in the 2016 election, Trump answered by declaring the unredacted portions of the report off limits under executive privilege.

Thus, Nadler sounded the alarm.

"We've talked for a long time about approaching a constitutional crisis. We are now in it," Nadler said on May 8, 2019. "[The executive branch is] uniformly rejecting subpoenas from Congress. This means that they have decided to oppose the role of Congress as a coordinate branch of government representing the American people. We cannot have a government where all the information is in the executive branch — where the American people and the Congress are stonewalled as to information that they need to make decisions and to know what's going on."

Nadler came out even stronger in a later interview with CNN. "We cannot allow Donald Trump and his minions to convert a democratic government into what amounts to a monarchy, where a Congress elected by the people has no real role" he said.

Pelosi backed him up. And other Democrats fell in line. "The president now seeks to take a wrecking ball," Sheila Jackson Lee of Texas said, "to the Constitution of the United States."

Sounds like a crisis. But is it crisis, or politics as usual?

What a Constitutional Crisis Looks Like

In their 2009 paper, Levinson and Balkin defined the term like this:

A constitutional crisis ... is a potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down, just as the body does in a medical crisis.

The authors offer three types of crises:

  • When leaders claim the right to suspend the Constitution, or parts of it, to preserve social order.
  • When leaders comply with the Constitution, but the political crisis remains or leads to disaster.
  • When leaders disagree over what the Constitution means and who has specific powers.

Two political science professors offer their own definition of a "Constitutional crisis" in a post on the site fivethirtyeight.com. They suggest that crises arise ...

  • When the Constitution doesn't spell out its intention;
  • When it does but it's unclear;
  • When what the Constitution states is not politically feasible;
  • Or when governmental institutions and how they're set up under the Constitution fail to work together and a power struggle ensues.

The last one might hit closest to the current situation in the United States.

Is This a Crisis or Just D.C. Drama?

Constitutional crises may seem cheap — the Teapot Dome scandal; Watergate and the impeachment hearings of President Richard Nixon; the disputed 2000 presidential election; the impeachment of President Bill Clinton; Congressional blocking of a Supreme Court nominee; even Trump's appropriation of money to build a border wall all have been slapped with the term — but true crises regarding the U.S. Constitution are probably not as common as all that drama may make them seem.

"People generally use the term 'constitutional crisis' to describe periods when institutions of government are clearly in conflict. But the mere existence of conflict, even profound conflict, cannot be the definition of crisis," Levinson and Malik wrote. "Government institutions are always in conflict."

Journalist Bob Woodward, who helped uncover the Watergate scandal, told CNN's Anderson Cooper the political brouhaha between Congress and the Trump administration is more "constitutional confrontation" than crisis at this point. Former New Jersey Superior Court judge Andrew Napolitano, who serves as a commentator for Fox News, called it a "clash."

Whatever — whether it's Washington as usual, or a disagreement that endangers the very document that upholds our democracy — the drama never ceases. That's American politics.