The Constitutional Crisis is Here
Kristen Welker:
But even given those numbers that you’re talking about, don’t you need to uphold the Constitution of the United States as president?
Pres. Donald Trump
I don’t know.
“Meet the Press,” May 4, 2025
In the closing days of his administration, President John Adams made a number of appointments that the Federalist Party majority in the Senate rushed to confirm. Secretary of State John Marshall hastened to deliver the commissions to the newly confirmed appointees, but he was unable to deliver them all before Thomas Jefferson became president. James Madison, the new Secretary of State, refused to deliver the undelivered commissions.
William Marbury, one of the appointees who had not received his commission, sued Madison and went directly to the Supreme Court for an order to direct Madison to deliver the commission to him. Marbury acted under the Judiciary Act of 1789 which, among other things, gave the Court direct jurisdiction over cases like Marbury’s.
John Marshall, who had become Chief Justice of the United States in the interim, wrote the unanimous opinion for the Court. The Court ruled that Marbury had a right to his commission, but he really didn’t need it because the commission was really just a formality. And the Court said that the remedy Marbury sought was the right one. The problem, Marshall wrote, was that the law giving the Supreme Court original jurisdiction—rather than having the case originate in lower federal courts—contradicted the Constitutional definition of what cases could be brought directly to the Court. The Constitution, Marshall wrote, was supreme. Therefore, the Court ruled for the first time in American history, the section of the Judiciary Act of 1789 giving the Court original jurisdiction was unconstitutional and hence void.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
That ruling established the constitutional power of American courts to review official acts and legislation to determine if they conflicted with the Constitution and to strike them down if they did. Marbury v. Madison is the most important ruling in American constitutional law, and it established the Supreme Court’s power to define and interpret the Constitution.
Marbury has been the uncontested law of the land for more than 200 years. It is the bedrock on which all Court rulings have rested since, demanding the respect and obedience of the other two branches of the federal government, as well as state and local governments and everyone living in the United States.
So, it is understandably shocking and disturbing that a president, any president, would, defy or ignore a Court order, generally referred to colloquially as the law of the land.
Presidents have been chastened by the Court over the years. Abraham Lincoln suspended the writ of habeas corpus during the Civil War, an act subsequently declared unconstitutional. Lincoln, however, ignored the ruling by Chief Justice Taney. Franklin Roosevelt saw much of the first New Deal’s legislation struck down by the Court. And Harry Truman’s seizure of steel mills during the Korean War was similarly overruled. Roosevelt and Truman, although furious, complied.
Lincoln was fighting a war, which accounted for his overreach. The current president, despite his claims to the contrary, is waging policy in peacetime. He may try to exaggerate our current situation, but we’re not at war with Venezuela or anyone else. There are plenty of legal, constitutional tools available for this administration to employ if it wants to deport men and women who are here illegally.
But that’s not what this moment is about. It’s not about illegal immigrants, or antisemitism on college campuses, or reducing the size of government or restoring some kind of trade balance with other countries or dispensing Congressionally approved appropriations. It is about the raw, naked seizure of power and, once again, the rule of law.
We’ve had a lot of discussion in the past 100 days about whether or not we’re experiencing a constitutional crisis. Without getting lost in the weeds trying to define what constitutes an actual crisis, it’s fair to say that the current administration in at least one case has done whatever it can to avoid obeying orders of various courts up to and including the Supreme Court. The Court ordered the administration to “facilitate” the return of Kilmar Abrego Garcia, a Salvadoran émigré living legally in Maryland who was deported to El Salvador in March in violation of an explicit court order forbidding his deportation.
The problem with Abrego Garcia’s deportation, aside from it violating a court order, was that he was given no constitutionally required due process prior to his removal. The Supreme Court’s order was unanimous in Abrego Garcia’s case. The use of the word “facilitate”, somewhat less than direct, may have been an attempt, however misguided considering the intended recipient, to be respectful and give the administration a way out of an embarrassing situation. Or, it may have been the Court’s way of avoiding a confrontation.
Whatever it was, the administration, and then quite openly, the current President, made it quite clear that it had no intention of obeying the order, however it was phrased. Donald Trump said in a televised interview with ABC that he could arrange the return but that he would not.
If we are waiting for a moment of clarity, some sort of push comes to shove incident, we may be waiting in vain. Trump’s genius is avoiding moments of clarity. Rather, he lays an intellectual fog that avoids the explicitness and lack of ambiguity that allows us to say, “That’s it.” We will probably never have a defining moment—a Pearl Harbor or a Caesar crossing the Rubicon. What we will have, as we had for four years in his first term, is a gradual whittling away, a slow but steady erosion that makes it impossible to pinpoint a defining moment. All the while, however, Trump and his administration will be doing their foot-dragging best, practicing their rope-a-dope technique of obfuscating, delaying and denying, doing anything but obeying judicial mandates. In the end, without being able to put our finger on when it happened, we will find ourselves where we never wanted to be.
The courts, and the Court, have no army to enforce their decisions, no separate police force to make arrests. Those forces fall under the control of the executive branch. When one branch of our government—the Congress or the President—comes into conflict with a court ruling, the court, as the ultimate interpreter of the Constitution, can rely only on the good faith of the other branch to honor its oath to defend and protect that document.
Donald Trump’s equivocation on his obligation to honor the oath he took on January 20, 2025 is the clearest indication we will get. The Constitution will not be a barrier to him. His stated uncertainty is all the evidence we need that the constitutional crisis we’ve been dreading is here.