Is This a “Constitutional Crisis?”
Peter Schultz
In the link provided below, David
Frum wants us to believe that we are facing a “constitutional crisis” because
of “Overt defiance of presidential authority by the president’s
own appointees….” According to Frum, such defiance is not “a constitutional
mechanism” and, hence, its use creates a constitutional crisis.
Well, while I am with
Frum in thinking that such defiance is troubling, to call it a constitutional
crisis is a bit much. After all, this is hardly the first time that a president
has been defied by others in his administration, whether appointed by him or
not. For example, it seems pretty clear that the CIA was actively involved in
undermining the presidency of Jimmy Carter and several parts of the bureaucracy
were actively seeking to undermine Nixon’s presidency, as he, Nixon, claimed.
Defiance of presidents, both overt and covert, is a common practice, one that
has bedeviled presidents for a very long time. And in fact such defiance is
built into our constitutional order via the separation of powers and the bill
of rights, the latter of which protects the freedom of the press as well as the
freedom of speech or expression.
In sum, there is no
constitutional requirement that other officials, either elected or unelected,
support or not defy a president. Of course, the Supreme Court is composed of
unelected officials serving at their own pleasure and, while appointed by the
president, they are not expected to support his policies. The Court may be, as
Hamilton argued, “the least dangerous branch,” but that does not mean it isn’t
dangerous at all or that it shouldn’t wield its power even in defiance of the
president. It is, in fact, it’s constitutional duty to do so.
So, no, this isn’t a “constitutional
crisis.” In fact, it is just normal politics in what claims to be a
constitutional order that creates a government of equal and coordinate
departments. And as Harry Truman is rumored to have said: “If you can’t stand
the heat, you should get out of the kitchen.”
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