Do We Have a Constitutional Crisis? Yes!

In my March 1 post below, I itemized individual challenges Trump had posed to the U.S. Constitution. As valid as it is to oppose each and every one of these challenges individually, we MUST NOT miss the forest for the trees. Taken together, they constitute a broadside challenge to our very democracy by pushing against the constraints established in the Constitution. This is the same playbook Putin in Russia and Viktor Orban in Hungary have used to establish autocratic dictatorships. We MUST oppose this!

Do We Have a Constitutional Crisis? Yes!

By Rick Olson
March 1, 2025

Our founding fathers who drafted the U.S. Constitution did not wish our country to have too powerful an executive, having just fought the Revolutionary War to free themselves from a King. The Constitution is based on the concepts of separation of powers among three co-equal branches and “checks and balance of power” between those three branches (as well as the 10^th Amendments reservation of powers to the states and to the people).

The basic separation of powers in the United States government, means:

·         Congress (legislative branch) creates laws,

·         the President (executive branch) enforces those laws (The President specifically is required by Section 3 of Article II of the Constitution that “he shall take Care that the Laws be faithfully executed”) and

·         the courts (judicial branch) interpret and decide on the legality of laws when disputes arise. 

This article attempts to outline where the President has either pushed up to or has crossed the line into unconstitutional actions. The bulleted items below are ranked in increasing order of reasons for alarm regarding Constitutional legality.

·         Deportation of individuals in the United States illegally who have committed other crimes. There is little disagreement across the political aisles on this but the disagreement appears to be mostly on how this is done, e.g., from within school classrooms, within courts, by local police officers vs. federal agents, etc.

·         The fact that “something” is being done to try to reduce the size of government, dealing with suspicions of “waste, fraud and abuse”. Most agree that there is likely some waste, fraud and abuse in the federal government that needs to be eliminated, but what some view as “waste, fraud and abuse” is simply some spending implementing policies that the dissenters simply disagree with on policy reasons.

·         Prohibiting individuals identified as “males” at birth to be able to compete with women after trans surgery. (A 2023 Gallup poll found that 69% of Americans support restricting transgender athletes to sports teams that match their birth sex. A 2025 New York Times/Ipsos poll found that 79% of respondents support a ban on transgender athletes from women's sports.)

·         Pardoning the January 6^th insurrectionists that had been convicted of violent assaults on police officers and/or destruction of property at the Capitol. While objectionable to many people, this is clearly a Constitutional power of the President, as bad as it is in undermining the rule of law and shocking the public conscience.

·         Selecting new employees or dismissing employees based on loyalty to Trump vs. objective qualifications for the job. Again, not a good idea, but within the power of the President, subject to the “advice and consent of the Senate”.

·         Transactional “deals” such as seeking the dismissal of charges without prejudice) against New York City Mayor Adams (which means they can be brought back, keeping the charges hanging over his head as long as he says and does what Trump wants). Nothing in law prohibits this (although the federal district court may not allow this in the current case). The argument is that this transactional approach fails to consider many important direct and indirect effects of the “deals”.

·         Targeting individuals for prosecution or investigation based on personal grievances, thus weaponizing the Department of Justice. There is nothing in law preventing this. The norm over decades has been, however, that the DOJ should be independent. The traditional “wall” between the Department of Justice and the President maintaining the independence of the DOJ as the “attorney for the country”, and not the “President’s attorney”, is seen as an “internal” check on the President’s power, essential to good government.

·         The speed with which the executive orders are being issued and implemented without any detailed review of just who should be fired (such as based on performance, vital need for the position, or legal requirements for dismissal) and/or which departments should be targeted for either termination or downsizing. While many people would like this cost cutting to occur, the desire is that it be done with a scalpel, rather than with a sledgehammer. The counter argument is that Congress is so dysfunctional that executive action is the only way it can be done. President after President from both parties have used this excuse to justify the ever-growing (and alarming) power of the President.

·         Having an unelected individual (Musk) who is given great power and/or influence within the federal government who:

o   has not been vetted or confirmed by the Senate

o   has not obtained ordinary security clearances

o   is not transparent on what he is doing or subject to the Freedom of Information Act

o   is not constrained by conflict-of-interest restrictions

·         Reneging on contracts already made regarding funding already committed by the federal government. The U.S. government is bound by the law of contract just as individuals and companies are, so these will all have to be fought out in court – if those injured by the breach of contract can afford to fight the U.S. government.

·         Betraying and berating our friends and allies, while unilaterally changing decades’ long foreign policy and treaties, away from favoring democracies to tilting towards our adversarial despots, authoritarians and dictators, without any checks or balances with either Congress or the courts. The President has enormous influence and power regarding foreign policy. However, the Congress has an equal responsibility to declare foreign policy as the voice of the people.

The current pivot in favor of Putin by the President (especially regarding Ukraine) is clearly against the desire of the American People. In a recent poll, 81% of the respondents said “No” to the question: “Should the U.S. Trust Vladmir Putin”. In another poll, 78% had an “Unfavorable view regarding Putin”. With regard to assisting Ukraine retain its independence, a November 2024 found that a plurality of Americans supported providing assistance to Ukraine:

 
                                      

Another August 2024 survey showed that 62% are more sympathetic to Ukraine than to Russia:

                                 https://www.brookings.edu/articles/more-americans-want-the-us-to-stay-the-course-in-ukraine-as-long-as-it-takes/

A recent Economist/YouGov poll found that only 18% of Republicans had a favorable opinion of the Russian dictator, Democrats 8% and independents 9% . It’s likely this 18% comes from the hardcore, activist part of the “base” impacted by a small cadre of pundits, too-online influencers and trolls.

Where are the members of Congress standing up to the President in this major departure from what the people of the country “of the people, by the people and for the people” want? Congress must do its duty as a co-equal branch of government!

·         Firing people that the Congress has designated as to be dismissed only for “cause” and only after consultation with Congress according to statutes intending to create greater independence of judgment from the President. The Congress wanted to limit presidential influence (or undue political pressure) on important regulatory functions, such as the Federal Trade Commission (FTC) or the Securities and Exchange Commission (SEC). To protect leaders or employees of these agencies from arbitrary removal by the President, such laws require that to fire someone "for cause," the President must demonstrate a valid reason, such as misconduct, neglect of duty, or incompetence, not simply disagreeing with their policy decisions. In some cases, the President must also consult with Congress giving Congress an opportunity to weigh in on the proposed dismissal. The goals of such restrictions are to ensure the independence of judgment and decision-making by the agencies and to protect the jobs of qualified experts who may need to make unpopular decisions, promoting continuity and stability within agencies. This clearly is not faithfully executing the laws of the country.

·         Declaring statutes the President does not like null and void and not to be enforced, such as the tax credits for climate projects. This clearly is not faithfully executing the laws of the country.

·         Refusal to spend money appropriated by Congress. This violate the Congressional Budget and Impoundment Control Act of 1974, which serves as a critical check on executive authority and answers “no” to the question “Can a president simply choose not to spend money that Congress has allocated?” This clearly is not faithfully executing the laws of the country.

·         Conditioning funding for states based on agreement with “federal policy/executive orders” in violation of the states’ rights and the concept of “federalism” under U.S. Constitution Amendment 10’s “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

·         Refusal by the President to abide by orders of federal district or appeals court pending appeal. An appeal usually “stays” the implementation of the order, so cannot technically be deemed in defiance of the order.

·         Refusal by the President to abide by orders of federal district or appeals court in the absence of an appeal to a higher-level court. Without an appeal pending, this can be interpreted as in defiance of the order and thus unconstitutional.

·         Refusal by the President to abide by orders of the U.S. Supreme Court. This is clearly unconstitutional. Of course, the jury is still out on how damaged the independence of the Court is after the Trump appointments. We may be forced to protest against adverse Supreme Court rulings which fail to restrain Trump where they should.

Conclusion:

Many of the actions of the current President, while objectionable and/or unwise, have not clearly crossed the line in being unconstitutional - yet. However, based on the totality of the actions, the thrust of Project 2025 playbook which Trump appears to be following favoring the dictatorial “unitary executive theory”, and the President’s own words, we as patriotic Americans (many of us who have sworn an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”) should be alarmed.

Call to Action: Congress must do its duty as a co-equal branch of government to maintain the balance of powers!

With the Republicans in control of both the House of Representatives and the Senate, if is unlikely that the President will be impeached – no matter what he does. However, Democrat members of Congress can introduce Congressional Resolutions and/or Articles of Impeachment as ways to make their voices heard. They can hold Town Halls and in other ways speak out.

You should make your voice heard in whatever way you can. Talk to your neighbors and friends, join protests, support candidates who are willing to fight back, write letters to the editor, as well as letters, emails and phone calls to your representatives in Congress.

Also, as a way to have your voice amplified, you can join the movement led by former Congressman Adam Kinzinger Country First.