House Speaker Nancy Pelosi said this week that she agrees
with House Judiciary Chairman Jerry Nadler that the United States is undergoing
a constitutional crisis due to Attorney General William Barr’s refusal to
provide an unredacted version of the Mueller report to Congress. Pelosi is
correct that the US is in a constitutional crisis – a series of constitutional
crises to be exact – but not in the way that she means.
There have been many explanations of why the Democrats are
off base with their contempt vote against Barr so I won’t cover that ground
here except to say that Barr is following the law in his actions. Certain parts
of the report cannot be released because federal law prohibits it. President
Trump’s claim of executive privilege, which will most likely only last until
Barr can ready a more lightly redacted version of the report for congressional
distribution, is justified in this case.
When it comes to the congressional request of President
Trump’s tax records, the shoe is on the other foot. The IRS
code requires the Treasury Secretary to provide certain congressional
officials with any taxpayer’s return and tax information. Nadler has provided a
legitimate, if contrived, reason for the request, but Secretary Mnuchin has
refused to comply. Since the request falls under congressional oversight of the
executive branch and the separation of powers specified in the Constitution, Mnuchin’s
refusal could be considered as fomenting a constitutional crisis.
Yet the congressional fishing expedition with respect to Trump’s
personal financial data is transparent. Even though House Democrats are acting
within the law with respect to the subpoenas of Mnuchin and Trump’s tax
returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing,
on the president or simply using the information to embarrass him is outside the
scope of congressional powers. Congress has rights to the information for
certain reasons but not for the purpose of seeking revenge on the president.
Nevertheless, “because it will embarrass the president” is not a legal ground
to refuse a legitimate congressional request. If Congress abuses its authority to
oversee the president then that is also a constitutional crisis.
A third constitutional crisis regards President Trump’s
tariff war. The first salvo in the trade war was fired on March 1, 2018, when
the president announced his intention to impose protective tariffs on steel and
aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act
of 1962 which allows the president to impose national security tariffs. While
the rationale was doubtful given the strength of the US steel and aluminum industries,
did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act
of 1917, the International Emergency Economic Powers Act of 1977, and the Trade
Act of 1974, the president has almost unlimited authority to declare tariffs without
The constitutional crisis, in this case, is that Congress
has abrogated its authority to “lay and collect taxes, duties, imposts and
excises” under the Constitution. Congress has delegated this important power
away to the president and the country is now feeling the effects of congressional
impotence. Congress needs to reclaim this authority, if not now, then soon
after President Trump leaves office.
Yet another constitutional crisis concerns the internal Department
of Justice memo that prevents indictment of a sitting president. The special
counsel’s decision to abide by the DOJ policy and then pointedly state that he
could not say that Donald Trump did not obstruct justice left America in limbo.
The claim of “no collusion, no obstruction” is obviously incorrect, but as yet
there is no resolution to the president’s unethical, quasi-illegal behavior. The
president should not be above the law. If he committed an act that would be a
crime for an ordinary, nonpresidential American then he should be prosecuted
just as they would. The DOJ memo was intended to prevent baseless persecution
of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free
card for presidents without respect for the rule of law.
Next is President Trump’s decision to declare a national
emergency to bypass Congress. When the emergency was announced in February
it was big news, but this crisis has since been forgotten with the onset of a
number of succeeding scandals. Yet the national emergency is a constitutional
crisis that undermines the very existence of Congress. Under President Obama,
Republicans were adamant that the House had the “power of the purse,” but now most
feel that it is fine for President Trump to ignore a Congress that won’t do his
bidding. Regardless of whether building the wall is a good idea or not, claiming
a national emergency to procure funds for it against the express will of
Congress is a horrible precedent, but one that is sure to be repeated by future
presidents if it is not quashed by either Congress or the courts.
The final constitutional crisis (at least so far) is Congress’s
failure to rein in the imperial presidency. Donald Trump figures prominently in
many of the ongoing constitutional crises but not all are unique to him. For
example, Barack Obama’s executive decisions on DACA usurped congressional
authority and his executive agreement with Iran undercut the Senate’s constitutional
role of ratifying treaties. The abdication of congressional authority to levy
tariffs goes back decades. The presidency will continue to become ever more
powerful unless Congress takes steps to assert itself.
A major part of the problem is that congressional partisans
have an attitude that the end justifies the means. Partisans of both sides refuse
to hold their own presidents accountable because they like the results of their
expansion of executive power. Democrats approved of Obama’s DACA deal and
Republicans love Trump’s national emergency. If Congress is going to
successfully limit presidential authority, it will require both sides to cross
the aisle and work together to uphold the constitutional limits on the
Reaching across the aisle is often considered traitorous
these days, but the Congress has a higher duty to the Constitution than to the
political parties. If Congress doesn’t act to defend the Constitution, presidents
of both parties will keep chipping away at it until there is no need for the
legislative body at all.
Benjamin Franklin famously said at the close of the
constitutional convention that the delegates had decided on “A Republic if you
can keep it.” The slow erosion of congressional authority shows that the
struggle to keep the Republic must go on.