America's "Constitutional Crash"

Welcome back to my newsletter Doomsday Scenario — a brief apology for the temporary hiatus, while I finished the manuscript for my next book (more about that later in the week) — and a special hello to the hundreds of you who have joined from Rick Wilson’s podcast. Onward to the news:

Donald Trump’s actions over the weekend to deport hundreds of people— we still, shockingly and horrifyingly, don’t really know who — without due process to a maximum-security prison in El Salvador against the direct and explicit orders of a federal judge is rightly causing much consternation. This, many say, is the constitutional crisis we’ve been fearing since January 20^th , when the Trump administration set the groundwork to start ignoring court orders. And indeed Asha Rangappa put it, this is as basic a test of liberty as one gets:

And while there are so many levels to be worried about this El Salvador case — the lack of due process, the executive power grab, the clear ignoring of a judicial order, the wildly bad faith legal arguments to explain away how the White House isn’t ignoring the judicial order — but it’s also inseparable from all the other interrelated crises unfolding at the heart of government right now as we watch a would-be dictator attempt to push and bully his way past all of history’s guardrails. “Disappearing” people isn’t would-be-Orban-level abuse-of-power—this is Pinochet-in-Chile or Jorge Rafael Videla-in-Argentina-level abuse.

Our real problem is this: Trump wouldn’t be doing this unless he thought he could get away with it.

Certainly, we’re in a constitutional crisis, but that phrase also doesn’t quite feel like it captures what we’re living through right now. We’ve been in constitutional crises before, moments when the resilience and brilliant architecture of the US’s founding document have been tested by unexpected developments, like the election of 1876, the presidential corruption of Watergate, or, say, the afternoon of January 6^th .

Instead, I think we’re living through something even more serious and more troubling.

“Constitutional crises” have come in many different flavors over the course of our country’s history and, for the most part, we’ve weathered them in something akin to good faith and with trust in the system. Traditionally, a “constitutional crisis” implies that there’s a tension in the system—that the various legislative, executive, and judiciary forces of Article I, Article II, and Article III stand arrayed against other, waiting for one to crack down on another after it has stepped out of bounds. Or that there’s some ambiguity in the language or political impossibility that’s calling into question the right way to move forward. In some ways, a “constitutional crisis” feels like the Cuban Missile Crisis, as Dean Rusk famously put it: “We're eyeball to eyeball and I think the other fellow just blinked.”

But that’s not what we’re experiencing right now as a practical matter.

Instead, we’re watching what I think might be better named a “constitutional crash,” not in the plane crash or car crash sense, but in the medical sense—we’re living through the sudden, ER-style flatlining of the healthy biorhythms of our 249-year-old constitutional order. Our national system of democracy and shared responsibilities is already dead on the table, waiting to see if there’s a shock large enough and strong enough to jolt it back to life.

We’re not waiting for someone to blink. We’re waiting to see if there’s any sign of life at all.

The problem right now isn’t that we’re in a moment of great tension for our constitutional system, with members of Congress poised to act if the presidential defiance of the courts continues. Nor have we stumbled into some strange ambiguity where we’re wrestling with the right path forward. The problem is that in effectively a single blink of the historical eye, we’ve seen our entire constitutional system simply … stop. We aren’t just outside the bounds of normal constitutional operations; we’re several standard deviations outside anything America has ever experienced before. We can clearly see what’s happening is wrong—illegal and unconstitutional—and the actors who can do something about that just … aren’t.

The Constitution is designed, famously, as an interlocking system of checks and balances, where any two of the other branches have oversight and authorities to act to overcome abuses of the third branch. The Founders had always envisioned that in a constitutional order, the holders of each of those offices would protect their own branch’s powers and prerogatives. It was a relatively safe bet—after all, it takes savvy and skill to make it to the top of the political heap and once there, who would willingly just give up that power to others?

But right now all three branches have stepped far outside of those lines and already abdicated key portions of its powers to others never imagined by the constitutional order.

We need to be honest and clear about where we are. This isn’t a constitutional crisis—this is a constitutional crash.

There are four distinct, different, and fatal signs unfolding at once inside each pillar of our constitutional system:

First, the Founders didn’t envision a scenario where a president would willingly cede power over the executive branch to an unelected, unconfirmed figure outside of government. One of the most basic built-in premises of our constitution turns out to be the mistaken assumption that if someone staged a coup, the president would (a) object and (b) resist using all the mechanics and powers and forces of federal authority. Donald Trump didn’t—and hasn’t. Oligarch Elon Musk and his DOGE junta forces staged what we elsewhere would clearly recognize and call a coup to seize the reins of government from Trump — and Trump appears just fine with that. Here’s the latest DOGE headline that should shock you: Elon Musk has installed his own communications system inside the White House complex.

Second, we didn’t envision a system where Congress would just … not care … what the president does. So much of our constitutional order is predicated on the simple fact that Congress passes laws, the president executes them, and the courts watch over both. But time and time again, we’re seeing the leaders of Congress just shrug their shoulders as Donald Trump ignores the very laws Congress has passed, from the Tiktok ban to appropriations bills. I talk all the time about how the main deciding factor in Watergate was that members of Congress in both the House and Senate acted first as members of co-equal branch of government and only second as Republicans. They understood that they had unique and important responsibilities as members of the legislative branch to hold the executive to account for abuses of power, civil rights, and civil liberties. “Country over party” is one of the most basic premises of American government—and one where the GOP has consistently fallen short for a decade. The response by both Republican and Democratic leaders who fear the public outrage at their inaction? Just don’t meet with the public!

“Impoundment,” the term of art when a president refuses to spend money appropriated by Congress, is one of the most garden variety constitutional crises—it was one of the original parts of the Watergate impeachment even!—and yet here we have Elon Musk vetoing single payments in the federal budget and Republican members are starting to lobby Musk as if they were supplicants in a 17^th -century court and not, you know, the people who literally set with the force of law how and what the US government should fund on an annual basis. Not even the Democratic opposition leadership in Congress seems able to muster the umbrage and indignation to fight back (that’s a subject for another column).

As some have darkly joked, the idea that a king can ignore parliament isn’t even American Revolution-level governmental theory—it’s even more fundamental than that, it’s English Revolution-level. This idea has been settled for a half-millennium—and yet … here we are with a House and Senate that doesn’t seem to care or, at least, is too scared and cowed to act.

Third, we didn’t envision the capture of the judicial branch by forces ready to rubber stamp the ascension of a monarch. Sure, right now we’re seeing the lower courts seek to enjoin some of Trump’s excesses and actions, but we have yet to see a meaningful test at the Supreme Court level where it’s willing to draw a real line against Donald Trump—and we have yet to test the question of whether the Trump administration would back down from a meaningful objection by the Supreme Court. The White House is already taking the line for now that “single judges” can’t meaningfully check presidential power, even though — you know — that’s the way the system has worked for 240-plus years. That test may come with time, to be sure, but this is a Supreme Court that has already committed itself to an ahistorical and king-making level of presidential immunity that not even the strongest Nixon backers of Watergate would have dreamed of. As one senior US official said to me last summer: “I expected the presidential immunity decision to be bad, I did not expect it to be a roadmap to autocracy.”

The fourth distinct and equally troublesome problem unfolding right now is one that exists outside the three branches of government but is still within the corners of our constitutional system: The willing abdication of the First Amendment by the media and institutional cornerstones of American civic life. When I used to teach at Georgetown University, I did most of a class on the First Amendment and how there are five distinct freedoms protected within it. We often shorthand it as “freedom of speech,” but the fact that the Founders went so far as to enumerate all five freedoms distinctly should tell us that they saw these as distinct and different freedoms and responsibilities: Speech, religion, press, assembly, and the right to petition our government for redress of grievances.

America is failing on almost all five of those freedom tests right now—all the institutions we would expect to step up to object, to lobby congress to care and do its constitutional job, to put pressure on elected officials on all levels, are falling short right now. We’re seeing this play out in companies and American oligarchs who are happily falling in line behind Donald Trump, in the mainstream press, from CNN to the Washington Post, who are pulling punches and bending over backwards to accommodate outright lies, and in major civic institutions, like Columbia University, who can’t seem to muster the outrage to even object strongly to Donald Trump targeting them specifically. We all need to do better — and we need to pressure our elected officials to be doing better.

We need to start by recognizing that this isn’t “merely” a constitutional crisis.

This is a constitutional crash.

America’s constitution is functionally dead right now — but it’s not dead dead.

Yet.

It can be revived.

Whether we can shock this system in time to revive it, though, feels very much an open question. What shock could or would that be? I don’t pretend to know; it’s not clear to me that either Elon Musk or Donald Trump are reachable right now by anything resembling normal political incentives. As a friend said to me this morning, “I remain hopeful, but I’m not optimistic.” Me too. 

GMG