Earlier today I recorded a Podcast for the National Constitution Center with Jeffrey Rosen and David Cole. The topic was whether the firing of Comey created a “constitutional crisis.” My short answer was No. A constitutional crisis requires, at a minimum, that there must be a violation of the Constitution. Trump was entirely within his authority to remove Comey at will. He didn’t even need to give causes. That he gave causes, which are probably pretextual, is irrelevant. Cole didn’t disagree with any of this, but suggested that there are certain foundational or democratic norms that were violated by Trump’s firing.
As I was listening to his answers, I had flashbacks to debates last year over whether the Senate had a constitutional duty to give Merrick Garland a vote. Once again, my short answer was No. The President has the duty to nominate judges to the Supreme Court, and the Senate can exercise its advise and consent however it sees fit. If the Senate, pursuant to its own rules, decides not to afford a nominee a hearing or vote, such that it expires at the end of the term, then that is the Senate’s advice and consent. Last year a New Mexico lawyer actually filed a lawsuit, seeking to force the Senate GOP to act of Garland’s nomination. He claimed that the Republicans had “created a constitutional crisis that threatens the balance and separation of power among our three branches of government.” Again, there can be no constitutional crisis when the Constitution is not being violated.
As Jack Balkin and Sanford Levinson noted in a 2009 article, the phrase “crisis” is overused, and is at risk of losing any meaning:
The difficulty, however, is that the language of crisis is ubiquitous, applied to controversies great and small. There is hardly a disagreement in American law, however slight, that someone will not label a “constitutional crisis.” . . .
An important 2002 article by Keith Whittington noted that almost three thousand articles in the press used “constitutional crisis” in reference either to the impeachment of Bill Clinton (1026 articles) or to the controversy surrounding the 2000 election (1901 articles).
People have evoked the expression “constitutional crisis” so often that it is in danger of becoming synonymous with almost any deeply felt sense of conflict or urgency, as illustrated by Chief Justice Roberts’s plaintive cry that he deserves a higher salary. Perhaps it has become no more than a marker of emotional intensity, the equivalent of pounding the table and marking one’s degree of upset about some state of affairs in the world.
My answers so far have been negative–what a “constitutional crisis” is not. Then what is a constitutional crisis? For sure, it has to involve a violation of the Constitution, but that is not enough. The Supreme Court finds every term that this action or that law violates the Constitution. And it isn’t even enough when Congress and the President disagree about the constitutionality of some action. In that case, the appointments at issue in Noel Canning would have triggered a “constitutional crisis.” It didn’t. Balkin and Levinson observe:
People generally use the term “constitutional crisis” to describe periods when institutions of government are clearly in conflict. But the mere existence of conflict, even profound conflict, cannot be the definition of crisis. Government institutions are always in conflict. Every year the Supreme Court hears cases, and the losers usually proclaim that the Court has grievously overstepped its boundaries.
Likewise, Balkin and Levinson find (as do I) that the firing of Archibald Cox was a “political crisis” rather than a “constitutional one.” If Justice Scalia’s dissent in Morrison v. Olson was correct (and I think it was) then Robert Bork was correct that he could fire Cox, even without cause. Not even impeachment, they argue, amounts to a constitutional crisis, because the House and Senate are using “procedures specifically written into the Constitution.” They are right. Nor does Bush v. Gore, they write, rise to the level of a constitutional crisis because “Al Gore almost immediately treated the Supreme Court decision as juridically valid” and Bush’s inauguration “took place without serious incident.” Right again.
Balkin and Levinson offer a framework to understand constitutional crises. It is a very, very high threshold:
We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. The first two types were identified by Machiavelli in the quotation that begins this Article. Type one crises arise when political leaders believe that exigencies require public violation of the Constitution. Type two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this task.
(1) the 1800 election stalemate, which began as a type two crisis because of the poor design of the presidential election rules and became a type three crisis when various states threatened to march their militias to Washington to settle the matter; it was resolved by Jefferson’s election;119
(2) the battle over the “tariff of abominations” that produced nullification resolutions in South Carolina, resolved by Andrew Jackson’s military threats and the passage of a compromise tariff that allowed South Carolina to back down;120
(3) the 1860-1861 secession crisis that led to and was resolved by the Civil War (itself a constitutional crisis);121
(4) the 1865-1868 struggle over Reconstruction, which involved expulsion of southern senators and representatives, military governorship of the South, and impeachment of Andrew Johnson, resolved by Johnson’s acquittal and his acquiescence in the ratification of the Fourteenth Amendment;122
(5) the 1868-1876 struggle over Reconstruction, which featured the successful violent insurgency of the Ku Klux Klan and similar devotees of the ostensibly defeated Old Order and the disputed 1876 presidential election; it was resolved by the appointment of an election commission, and more importantly, by the “Compromise of 1877” that led to the restoration of white rule;123 and
(6) the Little Rock crisis of 1957, resolved by the dispatch of federal troops to integrate the Little Rock schools.124
You may or may not agree with Balkin and Levinson’s framework, but at a minimum it offers a way to think about the issue facing us. The Republic will survive James Comey’s unemployment. Indeed, Republicans and Democrats alike agree that the FBI is better off without Comey. The Constitution was complied with. Our institutions retain able to check Trump. And this too shall pass.