We’re less than two months into the second Trump administration, but one thing is clear: President Donald Trump would very much like to be unbound by the Constitution.
A whole range of Trump’s early actions, from his attempt to roll back birthright citizenship, to his attempt to freeze a whole range of federal spending, to his attempt to shut down the US Agency for International Development (USAID), are just blatantly unconstitutional. The Constitution explicitly states that people born in the US are citizens, with narrow exceptions that do not apply to Trump’s attempt to roll back birthright citizenship. Similarly, Congress, and not the president, gets to decide how the United States spends its money.
Thus far, the courts have not been particularly tolerant of Trump’s unconstitutional actions.
Indeed, Trump’s attempts to subvert the Constitution have been so frequent and so unapologetic, that many scholars are already labeling the situation a constitutional crisis — a situation in which the Constitution either fails to work as designed or is simply ignored by those in power.
If the United States is actually in a crisis it so far has been a managed one. Thus far, the Trump administration has complied with court orders blocking many of its unconstitutional actions. Some members of the administration, most notably Vice President JD Vance, have suggested that Trump should simply ignore these orders and behave as if he is unbound by law. But, for the moment, the Trump administration is not openly defying any of the orders against it.
This tenuous moment could escalate into a full-blown constitutional crisis at any moment, however. And it could get there in one of two ways.
The first is if Trump actually did openly defy a court order insisting that he must comply with the Constitution. If that were to occur, the only lawful mechanism remaining to control his behavior would be impeachment. And, when you consider the fact that the Senate couldn’t find the required 67 votes to disqualify him from office in 2021 after he incited a mob to attack the US Capitol, a successful impeachment seems highly unlikely.
The second possibility is even worse: if the courts, and, especially, the Supreme Court, choose to be complicit in Trump’s attacks on the Constitution.
It’s not hard to imagine the Supreme Court, which has a 6-3 Republican supermajority, deciding to cast its lot with the leader of the Republican Party. Just last July, the Republican justices ruled that Trump is immune from prosecution for nearly all crimes he commits using his official powers as president.
Worse, much of that opinion argued that Trump cannot face consequences even if he orders the Justice Department to target his political rivals. So the Republican justices have already preemptively given Trump permission to use state power in a manner that’s inconsistent with the rule of law.
If the justices were to uphold some of Trump’s unconstitutional actions, such as his attack on birthright citizenship or his attempt to “impound” federal funds he does not want to spend, that would grant a patina of legitimacy to those actions. And it would likely give Trump’s allies in Congress another excuse to continue backing the president.
It remains to be seen whether Trump or his fellow Republicans on the Supreme Court will decide to trigger the kind of crisis that would result if he openly defies the courts, or if the courts decide to place loyalty to the Republican Party over loyalty to the Constitution. For the moment, all we can do is wait and see if that crisis arrives.
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