Not a Crisis. An Attack.

What's going on.

Donald Trump’s administration is now either outright defying judicial orders or, at the very least, making improbable legal arguments for why what they’re doing doesn’t constitute that serious step. It’s part of a serious attack on the Constitution. But I won’t be calling it a Constitutional crisis.

I previously mentioned that I’m not a fan of “Constitutional crisis” as a concept. I’ll link again to Julia’s item (with Seth Masket) in which they grapple with what people mean by “Constitutional crisis”, but I think the bottom line is that a lot of people use the phrase to describe very different things. So why don’t I like it?

A couple of reasons. One is that it’s too passive and neutral. What’s happening now is a sustained, multi-prong attack on the Constitution and the rule of law by Donald Trump and his allies. It didn’t just happen. Nor is there any question about who is responsible for what’s happening overall, even if there are reasonable quibbles over exactly which actions are legitimately contested, which are clear overreach, and which are even worse. We need to say plainly: The president is attacking the Constitutional order.

The other problem I have with “crisis” is that it implies, I think, a single break point on a single dimension. But that is wrong.

It’s possible, I suppose, that at some point Trump or a similar-minded successor could declare himself Emperor or King or Czar or Intendant of the Trumpian Empire or whatever, with the Constitution revoked as null and void. But while (alas) we can’t rule it out, it’s far more likely that the Constitution will remain formally in effect, and that in fact Trump will continue to (falsely, of course) claim he’s the one respecting it while all his many enemies seek to undermine it and him.

But that’s not all. What’s very likely is that Trump’s authority will remain contested, even if he (partially) succeeds. There won’t be any single defining moment. He’ll likely win some things and lose others. A wide range of possible outcomes are meaningfully different.

Chris Geidner has been very good, for example, at explaining the complexities (see this excellent thread) involved in “complying” with the courts. Or, as he puts it, “whether or not the Trump administration is complying with, narrowly interpreting, or violating court orders.”

When things happen that appear to be violations of court orders, people are right to speak up and say so. But, the reality is that, when that happens, we then have to look into the specifics, see what lawyers and subject matter experts think, and — yes — see what the answer given by the Trump administration is for the action that is seen as violating the court order.

Indeed, there are plenty of instances of the administration being slapped down by a court and complying; there are examples of what looks to me like fairly normal fights against what the courts say; and some examples that are clearly extraordinary and assaults on the rule of law. Albeit, at least so far, with a possibility that they’ll still back down.

And it’s not just compliance with court orders that turns out to be more complicated than people think. For example, elections. Some people are out there claiming that Trump won’t allow elections in 2026 or 2028 at all, which is extremely unlikely. After all, there have already been several elections so far this year, and several big ones are coming up in just two weeks on April 1, without as far as I’m aware hints of anything improper.¹ That could change. But there’s no “cancel elections” button for Trump to press, or even a “rig elections” button. He (and his allies) will have to work at it.

In other words, the real question is whether we’ll have “normal” free and fair elections, and the most likely answer is that Trump and his allies will try, and may or may not succeed, in tilting things to themselves as much as he can.

Obvious violations, such as the current attempt by North Carolina Republicans, who are still attempting to steal a seat on their state supreme court months after the November election, have been rare and may stay that way. We’ll see. Expect instead (for example) election laws that change things on the margins; expect, perhaps, increased violence or threats of violence against potential candidates; expect, perhaps, disruptions of Democratic campaigns by thugs encouraged by Trump’s pardons of the January 6 criminals. But how much of that will happen, and how state and local election administrators will cope with it is unknown and will probably vary in lots of ways. Again: So far at least (and yes, it’s only been a few weeks!), elections are going on normally, as are many other forms of political activity.

The problem with the language of “crisis” is that it simply doesn’t prepare supporters of the republic for the reality of the situation, which is a series of long fights, some high profile and some not, many of which will have unclear and complicated outcomes. Trump may be more successful at claiming anti-Constitutional authority over federal spending, say, than over elections, or vice versa. Or succeed eliminating free and fair elections in a handful of states but fail elsewhere.

After all, even in relatively normal times there are all sorts of fights that have important implications for just how democratic a nation the US will be. Over the history of the Constitution, the democratic side has lost a good number of those battles, some of which were extremely important. The current challenges to the republic are different, but not necessarily more severe, than (say) the imposition of one-party rule along with mass disenfranchisement in the South after Reconstruction.

The worst temptation — and I think a “crisis” framework encourages it by treating single conflicts as the final battle until it’s over and the next final battle approaches — is for supporters of the republic to declare defeat and even to mock those still fighting.² Because for all the very bad news for the Constitution we’ve had since January 20, the very good news is there is that US democracy still have very deep roots, and while it’s relatively easy to damage the republic it’s a lot harder to fully destroy it. As long as those who defend it don’t give up.

1. Unless you consider Elon Musk (and other rich people) dumping millions of dollars into the Wisconsin judicial election improper, but it is within the law and reflects more or less normal practices.

2. To be clear: I don’t think “crisis” talk is a deliberate mistake by anyone; I just think it’s a vocabulary that makes us into lazy thinkers on this subject. And of course the larger point about a long fight with no single break point holds whether or not I’m correct about calling this a crisis.