Thursday, September 6, 2018

Is This A "Constitutional Crisis?"

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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