What is a constitutional crisis, and how will we know if Trump causes one?

Boston Globe

27-02-2025

Vice President JD Vance this month appeared to endorse further expanding the executive branch's power, saying
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'If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal,' Vance
So what is a constitutional crisis anyway?
While legal experts don't agree on a single definition for a constitutional crisis, they do believe one would feature certain fundamental characteristics.
A constitutional crisis takes place when one of the three branches of the federal government — the judiciary, the executive, and the legislative branch — exceeds its powers granted by the Constitution and encroaches on others. That typically takes place by defying court rulings or laws, with limited pushback from the other branches.
In short, a constitutional crisis
arises when 'you have a crisis that does not get resolved by the rule of law,' said
Jed Shugerman, a Boston University law professor and presidential historian. He noted a crisis can also stem from disputes between the federal government and the states.
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The United States has undergone — and survived — several constitutional crises.
In 1832, for instance, President Andrew Jackson defied a Supreme Court ruling that Georgia could not seize land belonging to Cherokee nation. Jackson ignored the ruling and ultimately forced thousands of Native Americans to move westward in what has become known as
In another instance, Southern states refused to desegregate their public schools after the
Scholars disagree on exactly at what point a government conflict becomes a constitutional crisis. Some believe it occurs when an executive disregards laws set by Congress, for example, while others think a president also needs to defy court rulings. A constitutional crisis doesn't happen with the flip of a switch, they said. Instead, they exist on a spectrum and can come in stages, with the potential to get worse.
Are we in one now?
That depends entirely on who you ask.
Many experts who study constitutional law say yes we are — albeit, in the early stages of one. Nearly 1,000
'We don't need to have a fully developed answer to what a constitutional crisis is to know we are in one right now,' said Kate Shaw, University of Pennsylvania law professor, one of the letter's signatories who spoke with the Globe.
Shaw pointed to Trump's
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'I don't think we are beyond the point of no return — and I also don't think it's necessarily a binary," she said. 'There is a spectrum, but I do think that wide-scale lawbreaking by one branch of government without really meaningful pushback, in particular from Congress, is the stuff of constitutional crises.'
Shugerman similarly likened the country's current state to levels of military readiness, saying, 'We just moved up from DEFCON 5 to DEFCON 4 because we have some mix of negligence, recklessness, or deliberation in not complying with lower court orders.' For instance, a judge admonished the Trump administration on Tuesday for not resuming
Some, however, argue a constitutional crisis arises only after a president directly ignores another branch. Ilya Shapiro, director of constitutional studies at the Manhattan Institute, a center-right think tank, said while the Trump administration has maintained an 'aggressive posture,' much of the hype around the question of a crisis has been overblown.
'There's no cataclysmic scenario that's going on right now,' Shapiro said. 'The administration is trying to, with more competence than eight years ago, restructure government, reorient our political culture in ways that left-wing elites who control the commanding heights of many institutions don't like.'
While there may have been 'technical violations,' Shapiro acknowledged, Shapiro said he felt Trump's executive orders were better lawyered than during his last term.
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'At the end of the day, it shouldn't be that shocking that the head of the executive branch wants to control the executive branch,' he said.
What has the White House said?
Trump officials have argued the president's actions are within the scope of presidential
power and claimed in court the laws they've challenged are illegal, not the Trump administration's new orders.
'We will comply with the law and the courts, but we will also continue to seek every legal remedy to ultimately overturn these radical injunctions and ensure President Trump's policies can be enacted,' Leavitt said.
The White House has relied on
Robert Tsai, another Boston University law professor, said Trump is exercising 'maybe the strongest form of the unitary executive theory' seen by any American
president. One key lawsuit to watch in this area, he said, is
or DOGE.
Where is Congress in all this?
Under the Constitution, the three branches of government are designed to check one another if one overreaches and infringes on the jurisdiction of others. In Shaw's eyes, 'The cleanest way out of a constitutional crisis is for Congress to assert itself as the Constitution expects it to.'
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So far, Congress doesn't seem interested in intervening. Congressional Republicans, who control the House and Senate, have defended Trump's actions, even as the president has tried to take on powers that Congress has traditionally guarded
jealously, such as setting
federal funding levels and priorities.
'I've been asked so many times, 'Aren't you uncomfortable with this?' No, I'm not,' House Speaker Mike Johnson, a Louisiana Republican,
Senator John Curtis, a Utah Republican, defended Trump's actions Sunday,
Some Democrats, meanwhile,
Trump's actions amount to a crisis just yet.
'Ask me in April,' Representative Jake Auchincloss, who represents Massachusetts' Fourth District, told the Globe Monday, pointing to upcoming budget fights. 'To me, what a constitutional crisis entails is if Congress cedes the power of the purse.'
Why does this matter?
Democrats warned throughout the 2024 presidential campaign that a second Trump administration
Brendan Nyhan, a political scientist at Dartmouth University in New Hampshire and the group's director, said expert ratings had 'declined to a level below anything we saw during Trump's first term,' meaning experts 'perceive there to have been significant deterioration in American democracy already.'
He said the president defying the law has not helped: 'A Constitution that's not treated as a binding constraint is no longer a Constitution.'
Several scholars, including Nyhan, suggested Trump's actions could have a chilling effect on the courts where, in order to maintain their credibility, judges
'circumscribe what they do precisely because they fear their decision not being followed.'
'We've already seen the legislature fail to uphold its constitutional responsibility,' he added, 'and if the courts do as well, we're in even more trouble.'
Shelley Murphy of the Globe staff contributed to this report.
Anjali Huynh can be reached at