Newsletter 342 April 15, 2025
Heidi Burgess and Guy Burgess
David Eisner: Are We In (or Getting to) a Constitutional Crisis?
After David asked if Trump's and Musk's actions were "controlled burns" or "uncontrolled wildfires," he went on to ask "How do we respond to Yascha Mounk’s smart conclusions that we are not yet in a constitutional crisis, although we might be headed toward one;" and that "anyone claiming to know what will happen next should be ignored, because no one does?" Given that we are not constitutional lawyers, we are not really sure what the phrase "constitutional crisis" actually means — presumably, it is something much more serious than a difference of opinion among legal scholars regarding what the Constitution actually means. What we do know something about, and what has us very concerned, is the possibility that the United States may be facing a "rule-of-law" crisis — a crisis that could lead to the collapse of processes that we have historically used to resolve our most difficult and consequential public policy disputes. Our concern is that a superficially legalistic (but still extremely serious) constitutional crisis might degenerate to the point where intimidation, violence, and large-scale civil unrest become real possibilities.
US democracy relies upon a complex system of checks and balances, in which the three branches of government (the executive branch, headed by the President), the legislative branch and the judicial branch all provide a check on the excesses and errors of the other. The President can veto laws passed by the legislature if he thinks they are unwise. (Though the legislature can still override that veto with a two-thirds vote in both the House and the Senate.) The Courts can decide that a law, or an executive action is unconstitutional, and declare it null and void. Judicial decisions are subject to appeal all the way up to the Supreme Court, whose members are appointed by the President with the approval of two-thirds of the Senate. The justices' lifetime terms are intended to insulate them from the political pressures of the moment.
If the Supreme Court explicitly finds Executive Orders or other Presidential actions to be unconstitutional, the President is supposed to reverse those orders, so that they are not carried out. Clear Presidential defiance of the Court in such circumstances would constitute the first step in what many would call a "constitutional crisis." Unfortunately, determining exactly when Presidential actions cross the line and become clearly unconstitutional is pretty fuzzy. Both parties have, over the years, allowed the system of checks and balances to erode by granting or acquiescing to ever more expansive claims of presidential power — claims that have given clever legal minds the basis for claiming almost any Presidential action is "constitutional." This is why it makes sense to think of the rule-of-law crisis at two levels — a larger systemic crisis and, quite possibly, an immediate crisis surrounding some particular act of Presidential defiance.
For example, there is today's alarming report in the Atlantic that describes how President Trump is openly defying the Supreme Court's 9-0 order that the administration take the steps needed to "facilitate" the return of wrongly deported Kilmar Abrego Garcia to the United States. The article also explains how the President is claiming that he has the right to deport any non-citizen to a foreign prison without judicial review. Even more alarming is the fact that he seems to believe that he has the right to do this to US citizens as well. The big question, of course, is how the Supreme Court will respond (and how the President will respond to their response). The Court may find some way to avoid a direct and immediate confrontation with the President (perhaps waiting for a test case that would more clearly establish its authority). Or, it might decide that now is the time to challenge the President directly.
In any event, it is clear that there is a substantial risk of a direct confrontation between the President and the Court in the near future. What makes such a possibility so scary is that it would force government officials who have taken an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic" to decide whether it is the President or the Court that speaks for the Constitution.
Even more worrying is the fact that the oath taken by those in the Armed Forces adds the phrase: "I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice." Finally, there are questions about what happens when the President fails to "execute the office of the President" in ways that will "preserve, protect and defend the Constitution." All of this raises the possibility that direct conflict may arise between police and military forces with opposing views on what the Constitution is telling them to do. This is the point at which we would have a true rule-of-law crisis (and, quite possibly, conflict that could lead to large-scale civil unrest and maybe even war).
While it would be nice to think that the risk of such a rule-of-law crisis is still relatively low, it's pretty clear that the risk is increasing to the point where it ought to be taken seriously.
This brings us to Yascha Mounk and David's second question.
Can Anyone Predict the Future?
Yasha Mounk says "no," no one can predict the future with any accuracy. In one sense, he is right. There appears to be no way to know what Trump is going to do or when. In fact, unpredictability,"shock and awe," seems to be his strategy for keeping opponents off balance, and unable to mount an effective response.
Even without Trump's efforts to cultivate unpredictability, however, today's complex world is characterized by a high degree of absolutely unavoidable uncertainty. Still, as Kenneth Boulding was fond of reminding us, there are things that we do know and things we can find out. It is possible to distinguish actions that are more likely to produce desirable outcomes from those that are not. And, this knowledge gives us a basis for identifying and taking the steps needed to reduce our risks. We tried to outline the strategy for dealing with uncertainty in our recent newsletter on the distinction between engineering and medical troubleshooting models.
If you look at what is going on as a complex dynamic system (which it most certainly is), you can see patterns that are well-established. One side attacks the other, the other attacks back. One side humiliates the other, the other humiliates back. Peter Coleman calls such predictable, ever-repeating actions "attractors." People are attracted to a familiar way of thinking and doing things. For instance, they frame everything that their own side thinks or does as "good," while framing everything the other side says or does as "bad." When they are attacked, they attack back. Heidi has long observed that conflict violates the laws of physics. In physics, as a pendulum swings from left to right, it swings a little bit less far each time. In escalated conflict, as the pendulum swings, it swings farther left and right each time. Biden's strong swing to the left brought on Trump's much further swing to the right (though we acknowledge what Trump is doing didn't used to be considered right (in either sense of that word). Although the left is still struggling to come up with an effective response, there most certainly will almost certainly be one. People don't take threats to their security or their identity in stride. Rather, they fight furiously until their secure, respected status is regained.
The Peacebuilder's Dilemma
This creates a serious dilemma for peacebuilders. Do we try to build peace by urging both sides to listen to and understand each other (as we usually do)? Do we try to slow the pendulum so that it stays away from the extremes and oscillates around some more moderate center? Do we urge all sides to compromise and work together to solve common problems (also as we usually do)? Or do we take a strong stance against the side that is currently violating democratic norms and doing its best to burn the government (if not all of US society) down? And is this an either-or choice? It seems to us that the most powerful antidote to Trump's extremism is not a return to the extremes of the left. Rather, it is to cultivate a much more broadly based social movement — one that genuinely tries to protect everyone's interests.
As our long-time readers know, we have been strongly on the side of listening, understanding, and compromise-based peacebuilding for a long time. But we have also been warning about bad-faith actors who try to undermine such efforts. If one looks at Trump's behavior, it is hard to escape the conclusion that he is the ultimate bad-faith actor. He not only will not compromise, he is trying to discredit and even destroy any entity that does so.
So, in addition to pursuing traditional peacebuilding efforts, we think peacebuilders need to become much more savvy about ways to discredit and disempower bad-faith actors. If we cannot do that, all our peacebuilding efforts are likely to go up in a cloud of smoke.
Finally, going back to the rule-of-law crisis discussed above, it is possible to identify a number of quite specific ways in which such a crisis might arise. It is also possible to develop plans for protecting the rule of law under each contingency. While we have read about some work being done along these lines, it appears that much more is needed.
This is, of course, just one aspect of the larger "massively parallel" strategy we have been developing for building peace and strengthening democracy in a complex and unpredictable world. There are a great many areas in which people are taking steps that are reducing risks and increasing the likelihood that we will find a positive path through these troubled times.
In his third point in his "P.S." in Newsletter 339, David talked about the role of bridgers in these hyper-polarized times. As we want to continue our effort to shorten our newsletters, we are saving our response to that idea for another newsletter, to be released soon.
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Lead Graphic Photo Credit: Supreme Court -- Source: https://commons.
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About the MBI Newsletters
Two or three times a week, Guy and Heidi Burgess, the BI Directors, share some of our thoughts on political hyper-polarization and related topics. We also share essays from our colleagues and other contributors, and every week or so, we devote one newsletter to annotated links to outside readings that we found particularly useful relating to U.S. hyper-polarization, threats to peace (and actual violence) in other countries, and related topics of interest. Each Newsletter is posted on BI, and sent out by email through Substack to subscribers. You can sign up to receive your copy here and find the latest newsletter here or on our BI Newsletter page, which also provides access to all the past newsletters, going back to 2017.
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