Legal scholars on whether there’s a constitutional crisis or not
After the Trump administration ignored a federal judge’s order not to deport a group of Venezuelan men, longtime New York Times legal reporter Adam Liptak contacted legal scholars on whether the clash between President Trump and the judiciary amounts to a constitutional crisis.
“If anyone is being detained or removed based on the administration’s assertion that it can do so without judicial review or due process,” says Jamal Greene, a law professor at Columbia, “the president is asserting dictatorial power and ‘constitutional crisis’ doesn’t capture the gravity of the situation.”
Trump raised the stakes Tuesday by calling for the impeachment of the judge who issued the order, James Boasberg of the Federal District Court in Washington, describing him on social media as a “Radical Left Lunatic.”
An Associated Press profile of Boasberg says his reputation among colleagues is “as a principled jurist with bipartisan respect — he was appointed to the federal bench in 2011 by President Barack Obama but was named a decade earlier to a seat on the D.C. Superior Court by President George W. Bush.”
A few hours after Trump’s statement, Supreme Court Chief Justice John Roberts issued a statement saying, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
Aziz Huq, a law professor at the University of Chicago, says assessing whether a given development is a constitutional crisis is “generally unhelpful.”
“I think it’s more useful to say that this is moving us into a completely different kind of constitutional order, one that’s no longer characterized by laws that bind officials and that can be enforced,” Huq says. “The law, in other words, becomes a tool to harm enemies, but not to bind those who govern. That is a quite different constitutional order from the one that we’ve had for a long time.”
Andrew McCarthy, a former federal prosecutor, wrote in the right-leaning National Review, “It’s all right to complain bitterly about court orders, but they are not to be ignored, much less knowingly flouted.”
The administration has chosen a different path, McCarthy wrote: “The government seems to be intentionally instigating fireworks. That seems like a terrible legal strategy, but it may be winning politics … at least for a little while.”
Asked whether the United States has reached a tipping point plunging it into a constitutional crisis, Pamela Karlan, a law professor at Stanford, questioned the premise. “‘Tipping point’ suggests a world in which things are fine until suddenly they’re not,” she says. “But we’re past the first point already.”
Greene, the Columbia professor, says, “An executive branch that operates without internal legal constraint but solely on the basis of its ability to get away with things, whether politically or legally, is itself sufficient to produce a constitutional crisis. A president who does whatever he wants until someone stops him is a constitutional crisis whether or not he is sometimes stopped.”
Trump wrote on social media last month: “He who saves his Country does not violate any Law.”