“This is one of those essentially contested concepts without a fixed definition,” says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court.
From dispute on the southern border between Texas officials and the Biden administration, in the prospect of a second Donald Trump presidency, the phrase constitutional crisis has found its way into many titles lately.
While contemporary crises pose risks that are well-defined, others are open to interpretation, such as what is meant when reporters casually invoke the failure of government institutions to keep the wheels of democracy running smoothly. Rolling rock he did so earlier this year, declaring with ominous certainty in anticipation of Trump's clash with state and federal prosecutors: “America is facing its biggest constitutional crisis since the Civil War.”
“This is one of those fundamentally contested concepts without a fixed definition,” he says Dan Urmandirector of law and public policy minor at Northeastern, who teaches courses on the Supreme Court.
Political officials and commentators have often warned of a constitutional crisis during the Trump years — first, in response to some of his policies; then throughout congressional impeachment hearings; and finally, when the former president reportedly campaigned to reverse the results of the 2020 election. The term has reentered public discourse as Trump, who is the presumptive Republican candidate for presidentfaces a host of state and federal charges.
Northeastern legal experts say that although real-world examples are often contested, the concept of constitutional crisis generally describes a situation in which a political dispute cannot be resolved within the system of rules, norms and procedures that govern society.
“In general, it has to do with the inability of our governmental institutions to solve problems in a legitimate or democratic way within the constitutional system,” says Urman.
Types of crises
The US Constitution is supposed to provide a framework for resolving disputes through doctrines such as the separation of powers. A constitutional crisis occurs when the system of “checks and balances” breaks down without clear recourse, and the issue at hand then “spills over,” rendering institutions unable to resolve the dispute, Urman says. Scholars, pointing to events throughout history, have delineated several categories of constitutional crises.
When the President William Henry Harrison died just a month into his term in 1841, a constitutional crisis ensued over the exact process of installing his successor. It was not until 1967, with the ratification of the 25th Amendment, that a process was put in place to clarify what had previously been constitutionally unclear.
Constitutional ambiguity can lead to a kind of crisis. Another is when the Constitution offers solutions to a problem, but they cannot be implemented because they are politically unfeasible. This was the case during the 2000 presidential election, when a vote-counting dispute in Florida was taken to the Supreme Court despite constitutional remedies. (While the power to determine a winning candidate rests with the House of Representatives in the event of a dispute, scholars Note (that the constitutional rules governing presidential elections still need to be “interpreted and supplemented.”)
The high court finally handed over the presidency to George Bushending a potential crisis (scholars have debated if Bush v. Gore constituted a real constitutional crisis) that left a stain on the democratic process.
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Close to crises
The beginnings of crises seemed to rear their head during the turmoil of the 2010s, Urman says. Take US Senator Mitch McConnell's refusal to hold a hearing for Merrick Garland, whom then-President Barack Obama nominated to the Supreme Court in 2016 at the end of his presidency after the death of Justice Antonin Scalia.
While many pundits protested the move, saying Garland was owed a hearing, Republican senators still blocked the nomination, paving the way for Judge Neil Gorsuch's nomination when Trump took office.
The controversy, however, was not a crisis, according to Urman.
“McConnell was playing constitutional hardball,” he says. “He was allowed to do this even though the norms and past practice suggested that Garland deserved, at the very least, a Senate hearing.”
Jeremy R. Paullaw professor and former dean of the Northeastern University School of Law, agrees.
“What made it not a crisis is precisely that Obama backed down,” Paul says. “McConnell said he wasn't going to hold a hearing, and Obama went and complained about it. spoke to the public about it. but he didn't say, “Well, we'll sit him anyway.”
A constitutional crisis usually refers to a specific moment in time, Urman says. The Civil War — itself perhaps the founding constitutional crisis — is remarkable example. President Andrew Jackson refuses to follow the Supreme Court's decision in Worcester v. Georgia in 1832, which recognized Cherokee sovereignty over Georgia state law. “The president didn't follow the Supreme Court's decision,” says Urman, “a clear judgment.”
When President Richard Nixon refused to turn over tapes of some of his telephone conversations to the special counsel in the Watergate scandal, a constitutional crisis arose. But after the Supreme Court ordered Nixon to do so, he complied. Crisis averted, Urman says.
“A president refusing to comply with court orders to comply with a subpoena would, in my view, be a constitutional crisis,” Urman says. “Nixon's compliance is what kept it from becoming a crisis. All other sectors will have suffered.”
Crises and ongoing crises
On January 6, 2021, an angry mob of Trump supporters stormed the US Capitol building at the outgoing president's urging, many chanting “stop the theftRegarding Trump's efforts to overturn the outcome of the 2020 election. Trump's fake election plan — is considered illegal by the White House Counsel's Office — set the stage for a potentially unprecedented constitutional crisis.
“The prime example of a crisis would be if Trump had been able to get the Secret Service to take him to Capitol Hill, and he had marched on Capitol Hill and said, 'I declare that you cannot count the electoral votes. Paul says.
But the plan required former Vice President Mike Pence to acquiesce to Trump, and Pence's refusal to go along with the plan, using the fake plates to derail the certification process, ended the near-crisis. “Ultimately, Vice President Pence's decision to certify the Electoral College count prevented a real crisis,” Urman says.
As the Supreme Court now considers whether Trump should enjoy presidential immunity from prosecution — including acts alleged in pending criminal charges — the specter of the crisis looms large. If the Supreme Court remained silent on the immunity issue or ruled against the former president and Trump was convicted on state or federal charges of election interference, afterward elected president in 2024, the country may be facing a crisis, experts say.
It is precisely this possibility that has animated many observers with concern.
“I don't think we're in a crisis right now, but we could be if Trump regains the presidency and refuses to comply with court orders,” Urman says.
Conflicts between federal and state governments
Another moment of crisis is the governor of Texas. Greg Abbott's legal standoff with the Biden administration on the southern border.
After a Supreme Court granted a request by the Biden administration to allow federal border agents to remove a concertina wire barrier, Abbott appeared to defy the order. The day after the Supreme Court overturned a lower court ruling barring the Border Patrol from tearing down Texas' makeshift fence, the Texas National Guard and state troopers continued to set up the razor.
Abbott justified the movesaying the state has a constitutional right to defend itself against what it called “invaders” south of the border.
“President Biden has violated his oath to faithfully execute the immigration laws enacted by Congress,” Abbott said this year, according to the Texas Tribune. “Instead of prosecuting immigrants for the federal crime of illegal entry, President Biden sent his lawyers to federal courts to sue Texas over its border security measures.”
The episode appears to contain the hallmarks of a constitutional crisis.
“The moment you hit a crisis is when you have two branches of government that have conflicting views on what should happen, and neither of them is willing to budge,” Paul says, adding that the federal government's impasse with a state the government also qualifies.
