Eric Posner: A Constitutional Crisis Might Be Near, in the Tension Between Courts and Elected Officials

Is the Long-Awaited Constitutional Crisis at Hand?

Since Donald Trump’s election in 2016, legal academics like me have been bombarded with emails from journalists asking whether the United States is undergoing or heading for a “constitutional crisis.” Most of these queries have been motivated by the president’s norm-busting, including his interference with Special Counsel Robert Mueller’s investigation of Russian interference in the election, his verbal attacks on journalists and judges, and his efforts to launch investigations against his political opponents.

A constitutional crisis, properly understood as a turning point that might lead to collapse or transformation of the system, has not occurred. But such a crisis does now appear increasingly likely. I am not talking about the election (though that could produce a constitutional crisis if the outcome is close, or in the unlikely event that Trump somehow refuses to leave office). Rather, I am referring to a crisis that could occur even if Trump loses. This crisis would arise from a tension that has existed throughout American history: namely, between the courts and a system of democracy that gives ultimate power to the people.

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