Constitutional Crisis Looms

Less than a month into Donald Trump’s second term, his administration’s aggressive restructuring of the government and flirtation with defying court rulings threaten to spark a constitutional crisis. “He could have done all of that lawfully, and instead what he’s done is testing the limits of his power in a way we have never seen in this country,” says retired federal Judge Nancy Gertner.

During a press conference on Tuesday, Trump dismissed concerns about executive overreach and claimed he would respect court decisions. But legal experts warn his broad view of presidential power crosses long held boundaries and is propelling the country into a constitutional crisis. 

On this week’s episode of The Intercept Briefing, Gertner, who is consulting on several cases challenging the administration’s actions and is a senior lecturer at Harvard Law School, and The Intercept’s senior counsel and correspondent Shawn Musgrave discuss the federal courts’ response so far and what it demonstrates about our system of checks and balances.

 “I hope that they will realize that one of the two checks on an aggressive president doing unlawful things is that the courts are functioning as a check on his power. I fear that the other takeaway is that Congress is not. The concern about Trump wiping out programs that Congress has approved is a concern that should bother every legislator — Republican or Democrat, it shouldn’t matter. That is a core, foundational checks-and-balances issue. And the fact that there is not an outcry from Congress is troubling,” says Gertner.

Musgrave adds that it is a real test of governmental structure. “We’re in a moment that illustrates the fragility of the system of checks and balances that’s held for a couple hundred years. The system that was set up in the Constitution isn’t guaranteed; it has to be protected. And so far, it looks like it’s going to be up to the courts to do that,” he says.

Gertner says there is another check that isn’t explicitly laid out in the Constitution, but is just as important. “The public will speak in two years in the midterm elections,” she says. “So the public, although it doesn’t have a specific role in the next two years before we can vote again on national issues, the public is important here. I think that people should stand up if they think that what’s going on is illegal and unconstitutional.”

To hear more of the conversation, check out this week’s episode of The Intercept Briefing.