Is America Really in a Constitutional Crisis? – The American Spectator | USA News and PoliticsThe American Spectator

Dear American Spectator Readers (or as it says on a coffee mug that I received for attending one of TAS’s annual dinners, other “proud members of the vast right-wing conspiracy”):

I apologize for having been AWOL for a while, but I have been busy doing good work in other venues such as filing a draft amicus brief in the D.C. Circuit pro bono publico (i.e. without compensation) on behalf to two eminent scientific societies trying to explain why the Biden EPA’s regulation setting a ridiculously low level for PFAS is bonkers (these are some of the so-called “forever chemicals;” brilliant nickname because very scary but untrue; they do break down just very slowly). That over-conservative and very expensive EPA rule is a subject I previously criticized in these pages in February 2024. I guess the powers that were in the Biden administration were not reading TAS. Oh well, their loss. (READ MORE: Biden’s Latest Political Payoff … With Your Money)

Also, I am just back from China, where I gave three lectures at Peking University at the invitation of a distinguished environmental professor there who is a former student of mine at Yale. (Yes, they really do send their best and brightest to study with us; that follows from one of the tenets of their prophet Sun Tzu in The Art of War: “If you know the enemy and know yourself, you need not fear the result of a hundred battles.”)

The Chinese students at Peking University Law School were very bright and asked me and my Yale colleagues lots of probing questions about what is going on in the U.S., but the official purpose of our trip was to comment at a workshop on China’s new environmental trading system for greenhouse gases. They have had a voluntary trading system similar to our Acid Rain Trading system or RGGI since 2021, and this upcoming expansion makes it mandatory for several industries. When up and running, it will be the largest in the world, larger than California’s and the EU’s. Who knew? You’d never hear about it from the “regime media,” to borrow a term from Laura Ingraham.

But I digress. The subject for today’s optional elective in constitutional law is “Are we really in a ‘constitutional crisis’ caused by Donald Trump’s ‘defying’ the courts?” That is certainly what the regime media is trying to get everyone to believe, which makes it inherently suspect. I was even asked by my church in Milford, Connecticut, which goes back to 1637 and the Puritans, to give a presentation on that subject, which is available here. I surprised a lot of those who chose to attend by showing them that most of the powers that Donald Trump is trying to take back were once presidential powers that were lost in the 1940s and 1970s in counterreactions by Congress and the courts to perceived abuses by FDR and Richard Nixon. (RELATED: Law Schools, Court Supremacy, and the Real Constitution)

A good example is “impoundment,” the presidential power not to spend monies appropriated by Congress. Almost every president from Thomas Jefferson to Richard Nixon exercised the power to impound appropriated funds. Joe Biden did too, withholding the $10 billion that Congress had duly appropriated for a border wall and then-President Trump had signed into law. No one screamed “constitutional crisis” at that point. (Yes, I know that Biden’s running dogs in the media, an old commie term that is insulting to our canine friends, claim that Biden’s action was different because he was just going through required environmental and other reviews that were required by law, but Trump had omitted. If you believe that I’ve got a bridge in Brooklyn I’d like to sell you.)

Let me remind those who are not paying attention to DOGE that out-of-control spending by Congress to buy votes threatens to destroy our country, a problem that I first wrote and spoke about in a sparsely attended lecture at Duke Law School in 1985, which is published in the Duke Law Journal here. (Yes, I do indeed feel like a lonely voice crying in the wilderness sometimes; thanks for asking.)

The root of the problem is that the Supreme Court keeps approving expansions of federal government power, but strikes down as not specifically provided in the Constitution the checks and balances on the exercise of those expanded powers. (See here for example.) That’s because they have forgotten Chief Justice John Marshall’s famous line from McCollough v. Maryland that new institutions not created by the Constitution itself are necessary and proper if, but only if, they are consistent with both the text “and the spirit” of the Constitution. The “spirit” of the Constitution means its overall design, which certainly includes checks and balances against overly expansive exercises of power, a point made in his book America’s Unwritten Constitution (2012) by an even better constitutional lawyer than I, Yale Law School’s Akil Amar.

The other thing that surprised some of my fellow parishioners in Milford was that fights among the three branches of government over power are one of the basic design principles of our Constitution. That strategy is consistent with the “balance of power” theories in vogue in international relations at the time the framers wrote the Constitution. One of the principal ways that the framers of the Constitution sought to control power was by building in a continuing power struggle between competing power centers into the structure of our government. “Ambition must be made to counteract ambition,” wrote James Madison, one of the Founding Fathers, in Federalist 51. (RELATED: Elephant in the Courtroom)

Similarly, the big bruhaha over Trump’s dismissal of federal workers only impresses those who don’t know their history. In 1871, the attorney general of the United States wrote a formal legal opinion maintaining that the president, as head of the executive branch, had the right to fire anyone in the executive branch. And the 1991 Clinton-Gore “national partnership for re-inventing government,” which was remarkably similar to DOGE, resulted in the “elimination of over 100 programs, the elimination of over 250,000 federal jobs, the consolidation of over 800 agencies.” And it was only one of 16 such commissions dating back to Theodore Roosevelt. (RELATED: DOGE Exposes Waste and Constitutional Drift)

Interesting question: why were all the prior ones not controversial and DOGE is? Maybe it was because Clinton and Gore were canny enough to call theirs a “partnership” and give it the initials NPR, or maybe because it wasn’t headed by the richest man on the planet who chose to get his picture on television wielding a chainsaw. A picture really is worth a thousand words.

Maybe the downsizing of the federal government could have been done more tactfully. All of us who have ever been fired or laid off know how painful an unexpected dismissal can be. My nominee for America’s greatest jurist, Oliver Wendell Holmes Jr., was once asked what he would say to a person condemned to die on the gallows for murder. He replied with words to the effect of “You are dying for your country like a soldier in battle to deter others from committing similar crimes in the future,” a quote I remember from reading him but have not been able to find on the internet.

Maybe DOGE would be less controversial if Trump and Musk had done more early on to explain to the country why this was necessary and to reassure those government employees who must suffer for the good of the rest of us that we honor their sacrifice as well as their service.

Of course, the reductions could have been done better, as most things in life could be, but pardon me for being cynical aka realistic enough to note that it is called “progress” or a “constitutional moment” when a Democrat like FDR tests the outer bounds of presidential power but a “constitutional crisis” when a Republican such as Trump or Ronald Reagan does something similar.

“This has all happened before and it will happen again,” is a quote attributed to Mark Twain. That truism is equally valid here, whether or not he really said or wrote that line.

Finally, what about the contretemps de jour about Trump repeatedly “defying” court orders, a key feature of the current talking points on CNN and other mouthpieces for the Democrat party. Most of that noise overlooks how the federal courts work. If Trump were to comply with the numerous lower court orders in the 150 or so pending court cases filed against his administration, the case would become “moot,” and the right to appeal to a higher court would vanish. That’s because the federal courts refuse to issue what they call “advisory opinions”; instead, they require that there must be a live “case or controversy.” (True, a narrow discretionary exception exists for circumstances “capable of repetition but evading review.” However, no sensible lawyer would advise a client to rely on it in the present circumstances, and query whether a situation “evades review” if one had a live case raising the issue but dropped it through voluntary compliance.)

President Trump’s administration is winning at least half of the cases on appeal, and even when he “loses” on some issues, he usually wins a large part of what he was seeking. That’s one of the key points in The Art of the Deal: ask for the moon and settle for Antarctica instead. (RELATED: Shooting Blanks From the Bench)

Case in point: even in the case of Kilmar Abrego Garcia, the illegal alien and suspected MS-13 gang member admittedly sent to the supermax prison in El Salvador through an administrative error, the original court order to turn the planes around immediately got watered down to a polite request to make a good faith effort to “facilitate” his return if possible and to “clarify” the judge’s order to “effectuate” Abrego Garcia’s return to the U.S.

That is not to say that Trump is — or should — win all the cases. For example, I would tend to agree with the Supreme Court that even illegal aliens suspected of being dangerous gang members should get a basic due process hearing before they are shipped off to prison in a foreign country. But even that isn’t as open and shut a case as the media might lead one to believe: a famous 1936 Supreme court precedent, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), held that the president is the country’s “sole organ” for dealings with foreign countries, i.e. that courts have no business ordering the president how to conduct negotiations with foreign countries. The current Supreme Court dialed that back a little, creating an exception to the seeming absolute language in Curtiss-Wright. The point for the moment is not whether scaling back Curtiss-Wright was right or wrong; time will tell.

The point is that what has gone on so far is well within the normal range for our constitutional system in which the president asserts expansive power and the courts dial some of them back a little by distinguishing/changing their prior precedents. Even where the courts maintain that Trump’s positions are wrong, Trump’s legal positions are not frivolous, but instead everything I have seen so far has a reasonable basis in existing law, even if the courts do not ultimately rule in his favor. That kind of jockeying back and forth is the normal functioning of our system, as TV legal pundit Jonathan Turley has pointed out in a fine series of interviews. I don’t always agree with Jonathan, whom I know reasonably well, but he is dead-on correct in this instance.

The problem is that the damage is already done in the minds of the people who hear over and over that Trump is defying the courts, as my favorite and best co-author, Gail Charnley Elliott, and I explain in this article in TAS, “What’s Worse Than Fake News?” Trial lawyers and propagandists throughout history have known that repeating something over and over makes it ring true.

Plus, how did the Dems manage to get the exclusive focus on this one guy and not the thousands of dangerous bad actors that Biden let into our country in violation of our laws, and Trump has now deported? Why wasn’t Biden’s defiance of our law a “constitutional crisis” but somehow Trump’s actions are?

Class dismissed for the day. Content yourself with the fact that a subscription to TAS is a lot less expensive than the tuition at either Yale or Scalia Law School. Plus, you get to read all the other great authors here.

READ MORE from E. Donald Elliott:

How DOGE Can Suspend Unneeded Regulations

US Supreme Court Should Reverse Colorado Supreme Court 9–0