What is a Constitutional Crisis?
There is no universally accepted definition of a constitutional crisis; however, according to Adam Liptak, there are several characteristics or features that constitutional scholars identify as indicating that a constitutional crisis is imminent or exists.1 “A constitutional crisis is not binary; it is a slope, not a switch. It can be cumulative, and once it starts, it can get much worse.”2 Signs that a constitutional crisis is occurring are systematic, unconstitutional and illegal acts taken by government officials; a president or Congress defying a Supreme Court order; or a president or Congress failing to fulfill a constitutional responsibility.
One theme emerges in all discussions of constitutional crises: that they involve a breakdown or failure of the rule of law, namely the US Constitution, to limit or restrain the powers either of a branch of the federal government or of a state (or states) as it attempts to violate the US Constitution. The Civil War is an example of the latter, when the Confederate States seceded from the Union.
To fully appreciate how and why a constitutional crisis can develop, one must understand the basic operating principles that the Framers embedded in the Constitution. The Framers’ vision was for a new type of government, one which did not fuse the three fundamental functions of government into a single person (a monarch) or body (a legislature).3 Rather, they spread the functions across three separate branches, granting each specific powers. This is referred to as the separation of powers principle. But cleverly, they placed a few powers in each branch that allowed it to stymie or block another if one attempted to infringe on its powers. This is known as the principle of checks and balances.4 When one or two branches cannot effectively resist or check the encroachments of the third branch as it undermines the other branches’ powers, thereby violating the separation of powers, then a constitutional crisis may occur.
Scholars have noted several constitutional crises in our history. President Andrew Jackson was involved in two. First, South Carolina refused to abide by two tariffs — 1828 and 1832 — passed by Congress with Jackson’s support, exercising what South Carolina called the nullification doctrine. Jackson asked and Congress passed a “Force Bill,” compelling South Carolina's compliance. The matter was settled when Congress passed a compromise tariff bill in 1832. The second instance was Jackson’s refusal to enforce a Supreme Court decision in Worcester, Plaintiff in Error v. Georgia (1832). The case was a dispute between the Cherokee Nation in Georgia and the state, with the Court finding for the Cherokees. Jackson famously said upon learning of the decision: “John Marshall has made his decision; now let him enforce it.”
At the death of President William Henry Harrison in 1841, the first death of a sitting president, Vice President John Tyler assumed the office and claimed all the powers of a duly elected president. Resistance emerged from the Whigs in Congress, who refused to recognize Tyler as president.5 Because the Constitution’s language on presidential succession was somewhat vague, the Whigs opted to consider Tyler a caretaker until the next election. Eventually, both houses passed a resolution in which Congress recognized Tyler as president with all the powers of the office for the remainder of Harrison’s term.
During the Korean War, steel workers went on strike in 1952, jeopardizing the production of steel needed to make military equipment. President Truman ordered US military personnel to take over and run the steel mills, replacing the strikers. The Supreme Court’s decision in Youngstown Sheet and Tube v. Sawyer bluntly rejected Truman’s claim, ruling that a wartime emergency did not provide him an opportunity to extend his powers to such a degree that he could have the federal government interfere in private businesses.
Nixon’s actions during the Watergate scandal are often listed as a near-constitutional crisis, which was averted when both Congress, using impeachment, and the Supreme Court in its US v. Nixon (1973) decision, thwarted Nixon’s attempt to build an “imperial presidency.”
Finally, there are concerns that many of President Trump’s actions during his first month in office have drawn the nation closer to a constitutional crisis than any president since Nixon. The Supreme Court will eventually issue decisions on the cases challenging President Trump’s actions. Depending on how the Court rules and Trump’s responses to those decisions, we should know whether or not we are in the midst of a constitutional crisis.
- Liptak, Adam. “Trump’s Actions Have Created a Constitutional Crisis, Scholars Say.” The New York Times. February 10, 2025. ⇧
- Ibid. ⇧
- The three basic functions are law-making, law-executing (carrying out the law), and adjudication of the law (interpreting the law and settling disputes arising under the law). ⇧
- There is another critically important principle invented by the Framers: federalism. They placed those powers relevant for governing all people across the entire nation — foreign affairs, national defense, international trade, etc. — with the national government, and those powers related to the people’s daily, basic needs (called police powers — public health, safety, welfare) in the hands of the state governments. The Framers were aware of two existing ways to structure governments: unitary, where all government authority is concentrated in a central government in the country’s capital (examples today are France, Italy, Israel and Russia), and confederation in which the state governments are more powerful than the weak central government (the clearest example today is Switzerland). The failure of the first American Constitution, the Articles of Confederation (because the powers to tax and regulate interstate and international commerce were in the hands of the states) was the main reason for calling a Constitutional Convention in the summer of 1787, hence the Framers were not about to retain that structure. ⇧
- Tyler was originally a Jacksonian Democrat, but he broke with President Jackson over his expansion of presidential powers. While remaining a Democrat for a time, Tyler favored states’ rights, and joined with Henry Clay, Daniel Webster, and John Quincy Adams in the new Whig Party. As President, Tyler unfortunately did not support the Whig's legislative agenda, vetoing several of their favored bills. The vetoes caused J. Q. Adams to introduce an impeachment resolution in the House, the first ever against a president, but it failed to pass. ⇧