Is America staring down the barrel of a Constitutional crisis?

A Constitutional crisis occurs when the Constitution's provisions are unable to resolve a significant issue, leading to a potential breakdown in the functioning of government. This can happen when there is a severe conflict between different branches of government, or when the Constitution does not provide clear guidance on how to handle a particular situation. One example of a constitutional crisis is when there is a significant departure from constitutional governance during emergencies. The Supreme Court in U.S. v. Eason Oil Co. emphasized that the Constitution applies equally in times of war and peace, and suspending its provisions during emergencies can lead to anarchy or despotism (U.S. v. Eason Oil Co., 8 F.Supp. 365 (1934)). This principle underscores the importance of adhering to constitutional norms even during naturally occurring or man-made crises, up to and including war from within or without. 

Another aspect of a constitutional crisis involves disputes between the political branches of government. For instance, the case of Committee on Oversight and Government Reform v. Holder discusses the potential constitutional threat if the judiciary were to resolve disputes between the executive and legislative branches, which are traditionally resolved through political processes (Committee on Oversight and Government Reform v. Holder, 979 F.Supp.2d 1 (2013))

However, Holder also stands for the proposition that an appropriate use of the judiciary may occur when a dispute appears to be purely political and therefore non-justiciable, is to determine if the dispute is purely political, and if found not to be, then "the third branch has an equally fundamental role to play, and that judges not only may but sometimes must exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power.

In the Court's view, endorsing the proposition that the executive may assert an unreviewable right ... "would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers." Id. at 3. Additionally, the case of Henry v. DeSantis illustrates that during crises, elected leaders must act within the constitutional framework to balance public health measures with safeguarding citizens' rights, emphasizing the judiciary's role in ensuring that Constitutional rights are not overridden by perceived governmental authority (Henry v. DeSantis, 461 F.Supp.3d 1244 (2020)).

As such, the implications of a constitutional crisis are profound, as they can lead to a breakdown in the separation of powers, undermine the rule of law, and potentially destabilize the government. The judiciary's role in interpreting the Constitution and resolving disputes is crucial in maintaining this balance, as emphasized in Elliott v. City of College Station where it is stated that interpreting the Constitution remains the judiciary's sole province (Elliott v. City of College Station, 674 S.W.3d 653 (2023)). 

Discussion:

In light of the flood of executive orders President Trump has issued since his inauguration on Jan. 20, 2025, especially those cutting off and otherwise controlling funding lawfully issued by Congress and the masses of lawsuits filed in response by several of the states' Attorneys Generals, workers' unions, nonprofit organizations and other parties in interest; do these actions and counteractions portend a Constitutional crisis in the United States?

The executive orders issued by President Trump, particularly those controlling funding lawfully issued by Congress, raise significant Constitutional concerns regarding the separation of powers. The Constitution grants Congress the exclusive power to control federal spending, and the President cannot unilaterally alter or condition appropriations without congressional authorization. In City and County of San Francisco v. Trump, the Ninth Circuit held that the President's power to issue an executive order preventing "sanctuary jurisdictions" from receiving federal grants was at its lowest ebb because Congress had not delegated such authority to the Executive (City and County of San Francisco v. Trump, 897 F.3d 1225 (2018)). This principle underscores that the President cannot impose conditions on federal funds without congressional approval.

Similarly, in New York v. Trump, the court emphasized that the Executive Branch must align federal spending with congressional appropriations, not presidential priorities. The Impoundment Control Act of 1974 requires the President to seek congressional approval to rescind appropriated funds, highlighting the Constitutional requirement for legislative involvement in federal spending decisions (New York v. Trump, -- F.Supp.3d --- (2025)).

The Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer further supports this view. The Court held that the President could not act unilaterally in seizing steel mills during a national emergency without express statutory authorization from Congress (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)). This case illustrates the limits of presidential power, even in times of crisis, and reinforces the necessity of congressional authorization for executive actions affecting federal spending.

Additionally, Communications Workers of America, AFL-CIO v. Christie reiterates that executive orders must be based on legislative acts or constitutional mandates. An executive order that usurps legislative authority by acting contrary to the will of the Legislature is invalid (Communications Workers of America, AFL-CIO v. Christie, 413 N.J.Super. 229 (2010)). The potential Constitutional crisis arises from the Executive Branch's attempts to control federal spending without congressional approval, which could lead to significant legal challenges and political conflicts. The implications include judicial intervention to resolve disputes between the branches of government and potential legislative actions to reassert congressional authority over federal appropriations.

In conclusion, the executive orders issued by President Trump that purport to control funding lawfully issued by Congress likely violate the separation of powers principle, as established by the Constitution and reinforced by judicial precedents (New York v. Trump, -- F.Supp.3d --- (2025)).

Shortly after being sworn in as the U.S.'s new Attorney General, Pam Bondi issued a memo informing DOJ attorneys that if they refused to advance legal arguments they disagreed with concerning the primacy of Trump's views, the lawyers would face DOJ discipline, including potentially being fired, which would be in direct conflict with their duty of candor to courts, in addition to their sworn allegiance to the US Constitution. Would AG Bondi's directive in the furtherance of Trump's agenda also be a badge of President Trump's actions leading to a Constitutional crisis?

The situation raises significant concerns about a potential United States Constitutional Crisis, particularly in the context of each DOJ attorney's sworn allegiance to the Constitution [see my Nov. 6, 2024, Daily Journal article "Military and legal professionals must scrutinize orders that violate the Constitution." Please consider the following relevant insights:

1. Attorney General's memo and DOJ attorneys: The memo issued by Attorney General Pam Bondi threatening discipline for DOJ attorneys who refuse to advance legal arguments they disagree with raises concerns about the independence of the judiciary and the executive's influence over legal proceedings. The Bondi memo has been harshly criticized by legal experts for potentially damaging the agency's independence and prioritizing loyalty to Donald Trump over the attorneys' oath to the Constitution. This suggests that Bondi's directives may not withstand judicial review, as they could force attorneys to choose between their professional obligations as employees of the DOJ and their abiding oath to the Constitution.

2. Separation of powers and judicial review: The courts have consistently held that disputes between the political branches can be subject to judicial review, emphasizing the judiciary's role in maintaining the balance of power. Again, in Committee on Oversight and Government Reform v. Holder, the court stated that the Constitution does not bar the federal judiciary from resolving disputes between political branches, as doing so is essential to maintaining the checks and balances envisioned by the Framers. Similarly, in Taylor v. Alaska Legislative Affairs Agency, the court recognized the necessity of judicial intervention to resolve constitutional disputes between the legislative and executive branches (Taylor v. Alaska Legislative Affairs Agency, 529 P.3d 1146 (2023)).

3. Executive orders and Congressional funding: The issuance of executive orders that control funding lawfully issued by Congress can lead to significant legal challenges. Again, in City and County of San Francisco v. Trump, the court found that the Department of Justice's interpretation of an executive order related to federal grants was inconsistent with the order itself and was a post hoc justification adopted in response to litigation. This indicates that executive actions affecting congressional appropriations can be subject to judicial scrutiny and may be deemed unconstitutional if they overstep executive authority.

Conclusion: Stay tuned for coming attractions.

2024 Fantasy: One of the most compelling yet troubling movies I've seen in a while is Alex Garland's 2024 "Civil War," chronicling a few days in the lives of a handful of war correspondents and photojournalists covering the civil war that has engulfed the United States caused by the takeover by an authoritarian federal government, led by a third-term president, and challenged by a secessionist movement led California, Texas and Florida (it is a movie after all!). It stars a very grownup Kirsten Dunst (I remember her first major role as a child vampire in 1994's "Interview with the Vampire"), with a very brief but impactful portrayal of a federal militiaman played by her husband Jesse Plemons in an uncredited role. See, https://en.wikipedia.org/wiki/Civil_War_(film)

2024-2025 Supposition: Since being elected, President Trump has joked (?) about seeking a third term. Some have speculated that if he were serious, he'd have four possible routes back to the Oval Office:

1. He could ignite his MAGA movement underwritten with the financial assistance of Elon Musk to first get Congress, and then enough red states to repeal the 22nd Amendment; or,

2. He could exploit a little-noticed loophole in the 22^nd Amendment that might allow him to run for vice president and then immediately ascend back to the presidency, see, https://constitutioncenter.org/blog/the-22nd-amendment-and-presidential-service-beyond-two-terms ; or,

3. He could run for president again under the belief that his super-majority in the Supreme Court won't do anything to stop him; or,

4. He could simply refuse to leave office, as is alluded to be the means by which the fictional President, played by Nick Offerman in "Civil War," obtained his third term -- and thereby put a formal end to America's democratic experiment. See, https://www.politico.com/news/magazine/2025/01/31/trump-defy-constitution-third-term-00200239

2025 Fact: On Jan. 13, 2025, Representative Andy Ogles (R-Tenn) introduced a House Joint Resolution to amend the Constitution of the United States to allow a president to be elected for up to, but no more than three terms. Here's a link to a copy of the bill, RESOLUTION TEXT. Please note that it forbids anyone who has had two consecutive terms (i.e.., Clinton, Bush and Obama), which means the only president this bill applies to is Donald J. Trump. Now that's a real Constitutional crisis!