The constitutional crisis just began

Why the Supreme Court will likely fold

Mar 17, 2025

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For the past two months, the Trump administration has been walking right up to the line of sparking a constitutional crisis and then hovering just above it rather than marching boldly over. Yesterday, it looks like they marched boldly over.

Two things happened to warrant this conclusion. Firstly, the administration deported Dr. Rasha Alawieh, a Lebanese kidney specialist and professor at Brown University, despite a court order clearly banning it from doing so. Secondly, the administration unloaded scores of detained Venezuelan migrants in El Salvador even after a court declared its justification for deporting them to be illegal and ordered that the planes carrying them be returned to U.S. soil.

There are a few questions about the timeline in the latter case, with some people claiming that the White House didn’t receive the order in time to stop the planes. When El Salvador’s leader posted a message on Twitter mocking the court order, declaring it to have been “too late”, the White House director of communications reposted it approvingly. You can take this two ways - as open defiance of the court, or a sign that it really was “too late”. Either way, the administration hasn’t ordered the deportees brought back stateside, as they should to comply with the order.

So what exactly is a constitutional crisis? It’s not just a really bad policy, or a government that we don’t like. It’s not even an egregious abuse of power or an action by the executive that is unconstitutional. Trump’s attempt to remove the right to birthright citizenship from children born to migrants in the United States might have been unconstitutional, but it’s not a constitutional crisis, because when a court ordered him to stop, he stopped (at least for now).

A constitutional crisis is a fundamental breakdown in the functioning of the constitution. It’s when the political actors created by that constitution - the president, Congress, and judiciary - stop playing their assigned roles and stop respecting each other’s areas of authority. In this case, the president is flagrantly violating legitimate court orders, essentially declaring that no court can constrain the actions of the executive branch. That, in turn, renders courts pointless - and the entire structure of the constitution, based as it is on rules and laws subject to judicial review, null and void.

Once you’re in a constitutional crisis, there are only two ways out. One is that the actor which caused it backs down - or gets forced to back down - and things go back to roughly where they were. The other is that the system goes through a period of chaotic and violent upheaval which ends with the constitution looking quite different to how it looked before. Which of these futures is our own?

I greatly fear it will be the latter, for reasons that are both historic and rooted in present-day politics.

Historically, the division of responsibilities between the three branches of the U.S. government has frequently shifted, and the tendency has been for more and more power to be concentrated in the executive. This has especially been the case with the courts. Most of the Founders were always skeptical that the Supreme Court would exercise much power, and it was only with Marbury v. Madison in 1803 that the Supreme Court’s power to hold laws and executive actions to be unconstitutional was established.

The Supreme Court has no guns with which to enforce its edicts, and its power and legitimacy rest entirely on the willingness of other actors to accept them. As a result, the courts have usually swayed with the political winds, trying to maintain their authority by never giving a president or other groups sufficient reason to defy them. In recent decades, this has involved recognizing a vast sphere of “national security” interests over which the president has authority and into which the courts do not stray.

Viewed narrowly, this was a canny move. As the United States became a global superpower and developed both a formidable security apparatus and a sense of great perceived vulnerability, the Supreme Court ensured that it would never discredit itself by issuing a ruling that was seen to endanger the nation. On the other hand, it opened up a vast gap in the constitution, allowing the executive to quite literally get away with murder in the name of “national security”. It might have seemed to the courts like they were preserving their power, but in fact they were letting it fritter away.

It seems likely that the ultimate result of what is happening right now will be to further this process. It is no surprise to me that the administration is beginning its deconstruction of the constitution in matters affecting non-citizens, for whom the “national security” rationale has often been used to justify abusive treatment.

By defying the orders of lower courts, the White House is confronting the Supreme Court with a choice. It can try to stop the administration, probably fail (it has no guns, remember), and be left discredited and weak. Or it can pretend that what the administration is doing was actually constitutional all along, that there’s nothing to see here, and that it remains sovereign after all.

Adopting the second course will save the Supreme Court some face. But it will also fundamentally alter the constitutional structure, removing the need for the government to treat non-citizens in accordance with constitutional protections. They could be detained and deported, at will, without any due process, whenever the executive felt like it. In other words, they would live in a state of lawless anarchy. They would have no rights that the executive is bound to respect, to paraphrase another Supreme Court case, Dred Scott v. Sandford, the most shameful in the court’s history.

And how long would it be until that state of lawless anarchy was extended to everyone else, citizen or no?

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