Are we in a constitutional crisis?

Summary

Podcast Summary: "Are We in a Constitutional Crisis?" – Consider This from NPR

Episode Details:

• Title: Are We in a Constitutional Crisis?
• Host/Author: NPR's Ari Shapiro
• Release Date: February 11, 2025

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1. Introduction

In this episode of NPR's Consider This, host Ari Shapiro delves into the pressing question: Is the United States currently facing a constitutional crisis? The discussion centers around President Trump's extensive use of executive orders, the subsequent legal challenges they've sparked, and the broader implications for the balance of power within the U.S. government.

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2. President Trump's Executive Orders and Legal Challenges

Ari Shapiro opens the conversation by outlining the surge of executive orders issued by President Trump and the significant legal backlash they've encountered:

• Immigration: Multiple judges have halted Trump's attempt to end birthright citizenship. (00:00)

• Federal Workforce: A judge blocked an executive order encouraging government employees to resign. (00:00)

• Transgender Rights: The administration's move to reclassify trans women to federal prisons designated for men was struck down by a judge. (00:00)

• Other actions, such as dismantling USAID and freezing federal grants, have also been invalidated by various courts. (00:00)

These legal setbacks indicate a pattern of judicial resistance against the administration's attempts to reshape federal policies unilaterally.

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3. Reactions from Trump's Circle

The administration's responses to judicial challenges have been notably confrontational:

• Elon Musk: After a judge blocked Musk's DOGE team from accessing personal data and Treasury systems, Musk labeled the judge as a "corrupt judge protecting corruption" and advocated for impeachment. (00:58)

• Vice President J.D. Vance: He controversially stated that "judges aren't allowed to control the executive's legitimate power," mirroring sentiments he expressed previously on the podcast Jack Murphy Live in 2021. (01:11)

• Mark Levin: In a conversation with Shapiro, Levin suggested radical measures for Trump, including replacing mid-level bureaucrats with allies and challenging judicial rulings in a manner reminiscent of historical defiance. He remarked, "the chief justice has made his ruling, now let him enforce it," echoing Andrew Jackson’s defiance. (01:13 – 01:34)

These reactions reflect a growing tension between the executive branch and the judiciary, with key figures questioning the judiciary's role in governing.

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4. Defiance of Judicial Authority and Constitutional Implications

Shapiro raises concerns about the administration's willingness to potentially disregard court orders, questioning the integrity of Article III of the U.S. Constitution, which asserts the judiciary's authority. He cites a Rhode Island federal judge, John McConnell Jr., who accused the Trump administration of ignoring a temporary restraining order by continuing to freeze federal funds. (01:50 – 02:46)

This defiance poses a threat to the constitutional framework that relies on the separation of powers and the enforcement of judicial decisions.

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5. Expert Insights: Amanda Frost on Constitutional Crisis

To unpack the situation, Shapiro invites University of Virginia Law Professor Amanda Frost to provide her expertise:

• Defining a Constitutional Crisis: Frost defines it as a scenario where one branch of government, typically the executive, "blatantly, flagrantly, and regularly" exceeds its constitutional authority, and the other branches fail to check this overreach. (03:34 – 03:42)

• Current Status: She acknowledges that the Trump administration has already overstepped in areas like redefining birthright citizenship and attempting to control the purse strings, marking the first half of a constitutional crisis. However, she notes that the judiciary and other branches are beginning to push back, preventing the situation from escalating fully. (04:05 – 05:31)

• Historical Context: Frost references Marbury v. Madison to illustrate past instances where the executive branch defied the judiciary, highlighting how those tensions were navigated without descending into crisis. (06:18 – 07:11)

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6. Checks and Balances and Potential Outcomes

Frost elaborates on the mechanisms that maintain the balance of power:

• Judicial Enforcement: Courts possess tools such as subpoenas, contempt charges, and fines to enforce compliance. However, she emphasizes that ultimate reliance is on the political branches and public will to uphold the rule of law. (07:27 – 08:18)

• Supreme Court's Role: Given its conservative supermajority, there's uncertainty about how the Supreme Court will handle emerging cases. Frost expresses hope that orders like redefining birthright citizenship would be deemed unconstitutional, though she predicts cautious deliberation in more ambiguous scenarios. (08:58 – 09:57)

• Public and Political Response: Ultimately, Frost asserts that the people and elected officials must assert their power to check the executive branch. Without this, the courts alone cannot sustain long-term compliance with constitutional norms. (10:14 – 11:05)

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7. Conclusion: Current Status of Constitutional Crisis

Wrapping up the discussion, Frost assesses the nation's situation as not yet a full-blown constitutional crisis but as a "constitutional stress test." The executive branch's overreach has been significant, but the checks provided by the judiciary and other branches are actively responding. The outcome hinges on whether these checks will continue effectively and if the executive branch will adhere to judicial rulings.

Frost concludes, "We are undergoing a constitutional stress test, and we have an executive that has usurped the power of Congress and overstepped the boundaries of the office. The question is, will the court step up to play their constitutional role in stopping it?" (11:17 – 11:43)

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Key Takeaways:

• Executive Overreach: President Trump's extensive use of executive orders has led to significant legal challenges, indicating potential overreach of executive power.

• Judicial Resistance: Courts across the nation are actively pushing back against actions deemed unconstitutional, exemplifying the judiciary's role in maintaining checks and balances.

• Internal Dissent: High-profile figures within Trump's circle are openly challenging judicial authority, raising concerns about respect for the judicial branch.

• Constitutional Resilience: While tensions are high, experts like Amanda Frost believe that the system's checks and balances are still functioning, preventing an immediate constitutional crisis.

• Future Implications: The situation is dynamic and hinges on the continued cooperation of all branches of government and the will of the public to uphold constitutional norms.

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Notable Quotes:

• Elon Musk: "A corrupt judge protecting corruption." (00:58)

• Mark Levin: "The chief justice has made his ruling, now let him enforce it." (01:34)

• J.D. Vance: "Judges aren't allowed to control the executive's legitimate power." (01:11)

• Amanda Frost: "We are undergoing a constitutional stress test." (11:17)

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This summary captures the essence of the episode, providing a comprehensive overview of the discussions surrounding the potential constitutional crisis in the United States, the implications of executive overreach, and the crucial role of the judiciary in maintaining the constitutional balance.

Transcript

[Ari Shapiro]

President Trump's blizzard of executive orders has run into a snowplow of legal challenges. There are dozens of cases challenging the White House's actions, and judges all over the country have found that the White House acted illegally. Here's just a few examples. On immigration, several judges have blocked Trump's order ending birthright citizenship. On the federal workforce, a judge blocked the offer encouraging government employees to resign. On transgender rights, a judge blocked the Trump administration from moving trans women to federal prisons for men. There are also rulings that block the dismantling of usaid, the administration's freeze on federal grants, and more. The challenges and the rulings continue to pour in, and Trump's team is punching back after a judge blocked Elon Musk's DOGE team from accessing personal data and other Treasury Department systems. Musk referred to the judge as, quote, a corrupt judge protecting corruption and called for his impeachment. And Vice President J.D. vance made the controversial claim on Sunday that, quote, judges aren't allowed to control the executive's legitimate power. That echoes something he said in 2021 on the podcast Jack Murphy Live.

[Mark Levin]

I think that what Trump should do, like if I was giving him one piece of advice, fire every single mid level bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts, because you will get taken to court and then when the courts stop, you stand before the country like Andrew Jackson did and say, the chief justice has made his ruling, now let him enforce it.

[Ari Shapiro]

On Monday, in an interview with radio host Mark Levin, President Trump criticized judges for wanting to, quote, tell everybody how to run the country.

[Elon Musk]

Judges should be ruling. They shouldn't be dictating what you're supposed to be doing. And why is somebody saying that you're not allowed to?

[Ari Shapiro]

These comments suggest that Trump's circle may be willing to ignore court orders and defy judicial authority. That authority is enshrined in Article 3 of the U.S. constitution, quote, the judicial power shall extend to all cases in law and equity arising under this Constitution. A Rhode island federal judge believes the Trump administration may already be ignoring the court. On Monday, Judge John McConnell Jr. Wrote that the administration defied a temporary restraining order by continuing to improperly freeze federal funds. The Trump administration argues that it acted in good faith to interpret the scope of the restraining order, and it has appealed the ruling. Consider this, is the US Facing a constitutional crisis? And what power does the judicial branch have if the president simply refuses to comply?

[Amanda Frost]

Foreign.

[Ari Shapiro]

From npr, I'm Ari Shapiro. This message comes from Carvana. Sell your car the convenient way. Enter your license plate or vin, answer a few questions and get a real offer in seconds. Go to Carvana.com today it's Consider this from NPR. What happens if the executive branch ignores the judicial branch? Is that a constitutional crisis? Many legal experts have been looking at this question right now, including University of Virginia law professor Amanda Frost. Welcome. Good to have you here.

[Amanda Frost]

Thank you for having me.

[Ari Shapiro]

I know that law professors have debated for many years what a constitutional crisis actually technically is. How do you define it?

[Amanda Frost]

Yes, I think a constitutional crisis occurs when one branch of government, usually the executive, blatantly flagrantly and regularly exceeds its constitutional authority and the other branches are either unable or unwilling to stop it.

[Ari Shapiro]

Blatantly, flagrantly and regularly. So you can maybe dabble in a little judicial defiance. And it's not quite a crisis, in your view?

[Amanda Frost]

Yes. I mean, I think the way our system works, and frankly it's intended to work, is that each of the three branches maybe pushes at the edges of its powers. They're all interpreting laws and applying laws. And then the question is, well, we have checks and balances. And so at that point, the other branches should step in and push back.

[Ari Shapiro]

So let's talk about those checks and balances. Congress's role is to enact laws. The executive branch carries out the laws. Technically speaking, what is the role of the judicial branch here?

[Amanda Frost]

Yeah, so the judicial branch resolves disputes when the executive seeks to implement a law and there's a claim that it violates either another federal statute or the US Constitution. Or the executive has just gone far beyond its authority, such as taking over the power of the purse, which belongs.

[Ari Shapiro]

To Congress, which some argued President Trump has done in the last few weeks.

[Amanda Frost]

Yes, I think it's clear that the president has gone beyond the powers of the executive branch by taking over the power of the purse or attempting to by attempting to redefine through executive order constitutional clauses, such as the citizenship clause, granting birthright citizenship, and taking other action which violate lots of different federal laws. So I guess the first half of my definition of constitutional crisis has occurred, but the second half, we have yet to see what will happen, which is will the other two branches, and particularly the courts, restrain or push back the executive? And we're beginning to see that happen.

[Ari Shapiro]

We are beginning to see the courts try to restrain the executive, but we're also seeing the executive kind of flip the bird to the courts in some respect. Does that give you cause for concern?

[Amanda Frost]

So I am deeply concerned, as I think every American should be, about the way in which executive power is being abused, misused, and overstepping the bounds of the authority. But I will say that as of today, at this moment, the executive branch has not taken the position that it can violate court orders or that it does not need to comply with court orders. So as long as we remain in a system in which the executive follows, or at least states that it has to follow, what a court says, I have hope that the system will hold.

[Ari Shapiro]

Let's talk about what happens if the executive does turn its back on a legitimate court order. Civilians defy judicial orders all the time, and they get punished for it with fines or with jail time. Have we ever seen a president defy a judicial order?

[Amanda Frost]

Yes. So, I mean, we go back, way back into our country's history when the Supreme Court was very weak and a new institution at the start of our nation. We had Marbury versus Madison, where the Jefferson administration didn't even bother to show up in the Supreme Court to defend its position. And so that was a moment where we could have called that a constitutional crisis. The court was savvy. It issued a decision that both declared its own power to stay what the law is and at the same time didn't require the executive do anything to comply, which of course, avoided the kind of crisis that would occur if the executive simply ignored the court.

[Ari Shapiro]

We heard that quote from J.D. vance in 2021, before he was in the government, where he referenced Andrew Jackson, who as president said, the Chief justice has made his ruling. Now let him enforce it. Do courts have an enforcement mechanism first.

[Amanda Frost]

I'll say it's shocking to hear JD Vance state that as if it's a positive thing, that is not a moment to have been celebrated. The fact that the President may have said, and the statement may have been apocryphal, but the President may have said that he would simply ignore a Supreme Court order. That is not a moment to be celebrated in our nation's constitutional history. As for today, there's a number of mechanisms or tools courts have to enforce their orders. Things like subpoenaing government officials to come and explain themselves if they're not following orders, holding government officials in contempt, or fining individuals. All that said, if at the end of the day, neither political branch nor the people want to see the law enforced, eventually the courts will fail in their efforts to do so. Our system, at the end of the day, relies on the people and elections and the political branches of government to ensure that we remain a nation governed by law.

[Ari Shapiro]

Well, how significant do you think it is that a judge in Rhode island has now said the Trump administration defied a court order and continued to freeze some federal funds that it was ordered to release.

[Amanda Frost]

I don't find that to be a moment yet of crisis, because the system is working where the response by the Trump administration was. We interpret the scope of the order differently. We are appealing not. We are going to refuse to follow any order you issue from here on, and we are ignoring you. The response that the Trump administration has is within the system as we know it. If they begin blatantly violating court orders and saying they don't have to follow them, then we're in new territory.

[Ari Shapiro]

It seems a safe prediction that these debates will ultimately reach the Supreme Court in one form or another. There is a conservative super majority right now, and the court has taken an expansive view of presidential power. Do you have a sense of how they might resolve this?

[Amanda Frost]

It depends on what the this is. So there's a number of different, of course, legal challenges based on violations of statute, based on violations of the Constitution. So depending on the case, the Supreme Court may uphold what the Trump administration has done or may strike it down. So one example is the executive order attempting to redefine birthright citizenship and exclude many people who are currently Americans from citizenship or people that we've always thought would be Americans from future citizenship. I expect and hope that if the Supreme Court got that case on appeal, that it would declare the executive order to be unconstitutional. Other cases may come closer to the line for the court, and the court will move cautiously, I would think, in this new environment.

[Ari Shapiro]

What about the overarching question that Elon Musk and J.D. vance and Donald Trump have all spoken to, that courts just can't check the president that, as Richard Nixon famously put it, and I'm paraphrasing, if the president does it, it's legal.

[Amanda Frost]

Yeah. So, of course, no one agreed with Nixon, or at least Nixon, at the end of the day, left office based on the fact that view was not accepted by the courts or the people. I would say today we are at an extraordinary moment where the Trump administration is attempting to expand executive power, which, by the way, has been expanding under previous administrations as well, but is attempting to expand executive power into new and unchartered territories. I think the courts can slow that expanse beyond the constitutional limits, but it cannot stop it. If the political branches, such as Congress or the people, who, of course, will go and elect again new members of Congress and a new president in four years, if the people don't accept it, then I think that is the last check on executive power, and the courts can only hold the line for so long.

[Ari Shapiro]

So to end where we started with the question of whether the US Is in a constitutional crisis, I've seen a variety of law professors argue that, yes, the country is in one right now. What do you think?

[Amanda Frost]

I would say that, no, we are not yet in a constitutional crisis, but we are undergoing a constitutional stress test, and we have an executive that has usurped the power of Congress and overstepped the boundaries of the office. And the question is, will the court step up to play their constitutional role in stopping it? And following from that, will the executive comply with court orders requiring them to stop taking action?

[Ari Shapiro]

That is University of Virginia law professor Amanda Frost. Thank you so much.

[Amanda Frost]

You're welcome.

[Ari Shapiro]

This episode was produced by Mark Rivers and Elena Burnett and was edited by Courtney Dorning and Nadia Lanci. Our executive producer is Sammy Yenigun. It's Consider this from npr, I'm Ari Shapiro.

[Elon Musk]

This message comes from NPR sponsor Shopify. Start selling with Shopify today. Whether you're a garage entrepreneur or ipo, read Shopify is the only tool you need to start, run and grow your business without the struggle. Go to Shopify. Com NPR.