LAW AND CRIME NEWS
February 23, 2025
In this winter of political
uneasiness, it is important to look back on Articles I, II and III of the
United States Constitution.
High school civics class taught us that the first three
articles of the Constitution established the structure of America’s government.
Congress, the legislative branch, makes the laws of the United States;
the Supreme
Court — the judicial — interprets the laws; and the president — the
executive — enforces the laws.
Each of the branches are coequal and provide a system of
checks and balances. The Framers created this system to ensure that no branch
becomes dominant. Each branch of government is vested with the ability to
respond to the actions of the others.
The president can veto legislation created by Congress, as well as
nominate heads of federal agencies and Supreme Court appointees. Congress confirms
or rejects the president’s nominees. It can also remove the president from office in exceptional
circumstances.
The justices of the Supreme Court, nominated by the
president and confirmed by the Senate, can overturn unconstitutional laws.
For nearly 238 years this structure of checks and balances
have held the “Great American Experiment” together, but the experiment has
faced challenges in the past. Founding Father Thomas Jefferson, as president of
the United States, was part of the first potential constitutional crisis when
the Supreme Court in February 1803 decided the case of Marbury v.
Madison, which established the principle of judicial review. Years
later, in 1834, President Andrew Jackson, unhappy with a Supreme Court decision
that favored Cherokee Indians in the region that would eventually become
northern Georgia, is believed to have said of Chief Justice John Marshall:
“[He] has made his decision; now let him enforce it.”
The Civil War saw the nation split in two. President
Franklin D. Roosevelt decided to run for an unprecedented
third and fourth term as president. In the 1950s, southern
states defied the Supreme Court’s ruling against segregation in public schools. In more
recent times, the country endured three presidential impeachments in 16 years.
Is America in a constitutional crisis today? Adam Liptak of
The New York Times recently defined a constitutional crisis as “the product of
presidential defiance of laws and judicial rulings.” Trump has signed more than 60 executive orders so far, the most
in a president’s first 100 days in more than 40 years. As of this
writing, Trump has been in office a little more than 30 days.
The orders, which Trump critics say greatly exceed his
constitutional authority, range from tariffs on Mexico and Canada, to pauses on foreign aid
and crackdowns on illegal immigration. Not to mention, bans on transgender
people serving in the military or participating in athletics, revoking birthright citizenship, freezing federal spending, firing government employees who are subject to civil service protections and firing inspectors general — the government’s own
watchdogs.
Saikrishna Prakash, a former clerk to conservative Supreme
Court Justice Clarence Thomas who now teaches law at the University of
Virginia told NPR, “The courts, you know, can issue orders and
judgments, and, per the Constitution, I think the president is obligated to
follow those orders and judgments. But, of course, there’s a practical
question, which is how do you get someone to comply with the law?”
More than 10 federal courts have temporarily halted or
rejected actions resulting from the new Trump administration’s actions. Last
week, U.S. District Judge John McConnell found that the Trump administration has not fully
followed his order to unfreeze federal spending and release
billions of dollars.
However, statements by top Trump adviser Elon Musk and
Vice President JD Vance appear to openly challenge judicial authority. The statements
have raised concerns that the administration may ignore court rulings it
opposes, reported the Brennan Center.
“It’s an open question whether the administration will be as
contemptuous of courts as it has been of Congress and the Constitution,” Kate
Shaw, a law professor at the University of Pennsylvania, told The New York
Times.
In the first case to reach the Supreme Court in the wake of
the onslaught of executive orders and actions taken within the first weeks of
the new administration, lawyers for Trump have asked the justices to let him fire a government lawyer
after a federal district judge ordered that the lawyer must be
reinstated.
The Trump administration’s emergency application asked
the high court to vacate a federal trial judge’s order temporarily
reinstating Hampton Dellinger, the head of the Office of Special
Counsel. Dellinger leads an independent agency charged with safeguarding
government whistleblowers and enforcing certain ethics laws. The position is
unrelated to special counsels, such as Jack Smith, appointed
by the Justice Department.
The Supreme Court has a 6-3 conservative bent. If the court constrains the
president’s authority to fire government employees, Trump’s potential defiance
of the court’s ruling could lead to a full-blown constitutional crisis unlike
anything the country has ever experienced.
But if the Supreme Court capitulates to the president, the
crisis may be even more grave. With the GOP kowtowing to Trump and in the
majority in both houses of Congress and the Supreme Court not imposing any
restraints, this country may well be slipping into the clutches of an
authoritarian.
(Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino)
This is an opinion piece. The views expressed in this
article are those of just the author.
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