Sarlacc Summary: Constitutional Crises

Welcome back to the Sarlacc Summary! This month, I wanted to explore a topic that has been coming into focus with alarming frequency—Constitutional Crises. Although the first Trump Administration was mired in multiple scandals, the President was simply too unaware of how the office worked to get himself in any serious trouble. His trust of advisors that Republicans thrusted into his cabinet had just enough of a spine to draw bright red lines even he couldn’t cross. When he did cross them, these individuals would not only resign, but create a tell-all book that would capitalize on the chaos within the administration. Now, those guardrails are gone, and Trump started out of the gate with loyalists that would love nothing more than to kiss the ring. As a result, the first weeks of this administration have already gone so off the rails that the phrase “Constitutional Crisis” has replaced “unprecedented” from the first administration. To be clear, the phrase is warranted, but I wanted to remind folks of what exactly a Constitutional Crisis is and why it is important to identify the ways in which these crises can be reached to be able to communicate more effectively to your elected officials and community members.

First and foremost, not all Constitutional Crises are the same. Generally, they’ll fit into three categories: Somebody disobeying the Constitution, a situation where the Constitution is unclear about the remedy, or a branch within the Checks and Balances refusing to do its job as outlined in the Constitution. There are shades of gray in each of the categories, so treat these categories as guidelines and not firm definitions. The founders intentionally made a system that created friction: Presidents are the representative of the US in foreign policy affairs, but only Congress can ratify a treaty; Congress can pass laws, but the Courts can strike them down; Courts can make rulings, but Presidents can nominate Justices once somebody steps down that reinterprets the law in a different way. Despite this inherent friction, a Constitutional Crisis is triggered when this friction goes above and beyond the normal scope and approaches a level that creates instability that the system can not account for. It should come as no surprise that within the first month of this administration, Trump has created a Crisis in each of the three general categories.

Starting with the clearest example of a Constitutional Crisis, Trump didn’t even last a week before running headfirst into a constitutional barrier. Specifically, when Trump froze all funding in order to “audit the federal government” he triggered the first category of Constitutional Crisis. If you think back to your 3rd grade civics class, you’ll remember that Congress, and the House of Representatives specifically, controls the purse and makes the budget for the United States. Presidents can definitely make draft budgets and make comments on what they hope to see in a budget, but it is ultimately the role of Congress. A President can not stop money from flowing, and they most definitely can not stop a program that has been funded by Congress. If anything, the President is tasked with ensuring that money is delivered to the right agencies and provided to the relevant people. Not only was the freeze a blatant disregard for the constitution, but the implication that certain programs would suddenly cease to exist was simply a slap in the face to Congress and the Separation of Powers. Organizations like USAID which were made by an act of Congress can not be simply undone because the President doesn’t like it. If he really wanted to get rid of it he would have to do it the old fashioned way—by making Congress repeal the agency it created. When we remember how spectacularly Trump failed to repeal the Affordable Care Act through Congress, it becomes easier to imagine why he has no interest in going through Congress this time, but it doesn’t make the crisis any less substantial.

Moving on to the second bucket, Trump’s pet project DOGE is a clear example of the Constitution not providing a remedy. Presidents can make cabinet positions and new agencies. Our current Executive Branch has grown from the country’s inception to now because of new departments and initiatives from multiple presidents over the years. However, there is a process for creating these agencies and giving them the weight of a formal agency. DOGE stands out not only because Trump failed to follow that process, but because the Constitution does not provide a process for curtailing a department that a President made incorrectly. As a result, people in the government understand that DOGE doesn’t have any real authority, but also seem to be complying with their demands because they are throwing the weight of the Presidency behind their outrageous requests. By now, you have probably seen the videos and images of legislators being refused access to federal agencies by random armed officers all under the guise of “following DOGE orders.” The confusion on their faces is how you know this is a Constitutional Crisis. Legislators are allowed in those buildings, they oversee those agencies and approve their budgets! However, they do not know how to respond to being denied access by an agency that doesn’t exist, but has very real people who are very clearly armed. This crisis is perhaps the scariest because there is no clear resolution, it is a reminder that the rules are made up as we go and that the words on paper only mean something when we give them weight in the real world.

The final bucket of Constitutional Crisis occurs when one of the three branches outlined in the Constitution fails to do its job. Just like the last bucket, this one has a bit of risk involved in it because it means that people are essentially not doing their job. For anybody who has run a business, somebody failing to do their job is handled by firing them. However, when it is your elected official it is much harder. Only other elected officials in Congress can move to impeach somebody, recalling a Senator or Representative can be costly and time intensive in your district, and in the case of judges some positions can be lifetime appointments meaning only an impeachment from Congress or death will remove that person. This crisis is best exemplified in the current confirmations that are playing out in the Senate. Currently, a nominee only needs 50 votes plus 1 (the Vice President) to secure their confirmation. Most of these nominees have drawn ire from the Senate, and Mitch McConnell has been voting “No” on a decent number of these nominees, but the rest of his party has refused to follow his lead. As a result, there is a leader of the majority party voting against the President’s nominees that the rest of the party simply does not care to stop. Normally, losing the confidence of the Majority Leader can quickly derail your legislation or nomination. Instead, we’re watching the Senate Majority ignore its own leader, while the Speaker of the House is routinely undermined by other Republicans in the House who have harder stances that align with Trump, throwing the entire House into chaos and disarray. Despite this, this crisis can be solved every time an election comes around. Simply defeating these people at the ballot box ensures that somebody who takes their oath to the constitution seriously gets elected. Although there is little comfort in waiting for the next election cycle, this is why it is so important to vote every chance you get because this flavor of Constitutional Crisis is one that is entirely in our hands at regular intervals in the United States.

For all of these crises, it is important to reach out to your elected officials at all levels because the way out of each of them is through your elected officials regaining control of the system. When a president disobeys the constitution, the affected parties can sue. If the Constitution is unclear about what to do, it is possible for elected officials to also make up the rules as they go. When a branch fails to uphold its obligation under the Constitution, it can be remade in the United States because we can ask the government for a redress of our grievances. The United States is literally built off revolution, and that spirit lives on in our ability to choose who represents us. All this to say, don’t lose hope, and make sure that you share your frustrations with others in your community and at all levels of government. The funding freeze affects your City Council, who can sue the Federal Government. Your state probably has a federal office that DOGE hates, and your governor and state legislators have every right to kick DOGE out of those offices for the same reason that DOGE can claim to be there in the first place. When somebody isn’t doing their job, remember that YOU are the boss in a Democracy and we only stop being the boss when we allow others to step all over us. Form up, Kyber Squadron, we got work to do!