Remote chance of a constitutional crisis - certainty of legal cases - US remains a democracy - voters respond in special elections and mid terms - and legislators speak for constituents
Whatever happens the US remains a democracy and your vote still counts. Also, there is no risk to the rule of law which helps order your lives and keep you safe. The many legal cases against Trump are continuing also.
A constitutional crisis just means something unclear in how some part of the US Constitution works.
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We get a miniature type of constitutional crisis every time the government goes into a partial “government shutdown” which has happened 21 times so far, last time in 2018 for 34 days under Trump. We may get another of those on March 14th.
Despite the name, Congress continues to operate normally as do all other essential services. Medicare and social services aren’t affected. Only about a quarter of government funding is affected and all essential services like air traffic control continue as normal. They aren’t paid but are ordered to continue to work and then are paid when the shutdown is over.
Most Federal employees are told not to report for work though when the shutdown is over they also all get back pay for the duration of the shutdown. For more about what happens during a government shutdown see:
The last major crisis was Watergate which unfolded over several years. We may never reach a crisis this time. But if we do then it would be to do with what happens if the executive tries to defy court orders relating to Trump’s executive orders. I.e. about how the judiciary and the executive interact.
TEXT ON GRAPHIC
Remote chance of a slowly unfolding Constitutional Crisis similar to Watergate.
Certainty of lots of legal cases against his hasty unprepared actions
And lots of resistance by legislators.
Making his legislative agenda next to impossible.
Trump may seem to have got off to a fast and decisive start
But he hasn’t looked where he’s going.
He’s digging holes to fall into
Then he will have to dig his way out again - which is not likely to save money
Photograph from: https://www.geograph.org.uk/photo/195319
Trump can’t trigger the sort of crisis that happened in South Korea when president Yoon closed down government and took over the media. A US president doesn’t have that power.
The US Constitution can’t be suspended except for the right to see a lawyer in detention - that’s the only right that president or Congress can suspend and only in extraordinary circumstances.
Similarly Trump can’t trigger the sort of constitutional crisis that happened in Hungary. Hungary has a very different constitution:
Electoral process that boosts the larger parties to make it easier to have a majority government, which gave the government 2/3 of the seats
Constitution that can be edited by parliament alone if it reaches that 2/3 majority.
Orban used this to edit the Hungarian Constitution to greatly reduce the power of the courts - and then was able to pass laws that would previously be stopped as illegal.
The US Constitution can’t be edited in this way. Any amendment can be blocked by a simple majority in one chamber in each of 13 states and there are 20 states with at least one chamber Democrat.
So no, that’s not what’s meant by a constitutional crisis here.
A constitutional crisis just means that something comes up that isn’t covered by the US Constitution.
Here the possible crisis is if Trump ignores court orders to block his executive orders which have tested the powers of a president as never before. So far he is going through the normal appeals process so it’s not a crisis.
But if he defies the courts in some way it is the start of what might eventually become a crisis. It would need to be resolved, either by the courts or by Congress.
The courts have much they can do here, they can use contempt of court orders to force the officials to obey the court orders and they can penalize attorneys for the government and even debar them (remove their license to serve as a lawyer). There are things that Trump could attempt from his side to try to resist those court orders too - at that point it becomes a constitutional crisis.
It would be a crisis over some particular court order, it doesn’t mean that Trump will just stop obeying any court orders.
We may never get there. If we do then it would need to be resolved in some way much as for a government shutdown.
So anyway I’ll go into details about that.
Here are the sections of this article about what is meant by a constitutional crisis
Then Trump is setting up major clashes with Congress in the near future. That’s waht might lead to the government shutdown on 14th Marsh. We’ll look at that, and other possible mini crises such as the debt limit issue in early June.
But we start off by looking at Trump’s overall objective to try to cut government spending. He could do this through Congress. He can’t do it by executive orders as there’s only $8 billion of funding he can cut in this way. All these government freezes and layoffs are not going to achieve any reduction in the expenses. Indeed the layoffs mean that the government is paying thousands of government employees to do nothing. The probationary employees he fired will need to be rehired or he will need to find other ways to restore the agencies to full working order that are affected by the layoffs, firings and freezes.
Since Congress sets the amount the government spends not the executive, he will still have to pay out the same amount - some of it to undo the effects of what he has already done. That is unless he can persuade Congress to reduce the funding. He could do some reductions in that way in a more normal year but it will be very challenging this time because of the effects of his executive orders.
Meanwhile, the US is still a democracy. Indeed remember that typically there are about a dozen seats vacated in the House every year. Usually they don't change the composition of the House much but in 2017-8 under Trump three seats flipped to Democrat, enough to lose him the House if it happened again this time.
So the people speak in the special elections if they don’t feel that Trump has lived up to his election promises, and they have also elected a House with a very narrow majority which helps keep Trump in check, as we’ll see.
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Trump’s actions can lose him the House if he loses as many seats as he did in 2017-8
In 2017-8 Trump lost 3 seats to the dems in the run up to the 2018 midterms, that’s out of 14 special elections for the House and 3 for the Senate in that year. He also lost one Senate seat in those special elections https://ballotpedia.org/Special_elections_to_the_115th_United_States_Congress_(2017-2018)
He only has 3 special elections so far this year and all three happen to have huge margins of double the vote for Republicans than for Democrats.
They are seats with large margins so they probably get the seats filled again with Republicans - all of them had the Republicans get about twice as many votes as the Democrats in strongly Republican seats.
Elise Stefanik 62% : 38% [will be vacated when she is appointed ambassador]
Democrat through to 2012
Redistricting in 2010, 2020 and again in 2024
Matt Gaetz: 66% : 34%
Republican with large majorities back to at least 2000
Michael Waltz 66.5% : 33.5%
Republican with large majorities back to at least 2000
It will be an extraordinary turnover for any of those. However, he could easily have a dozen or so more special elections to come based on the typical yearly turnover in the very large House of Representatives.
The numbers in previous years from 2016, based on counting the figures in the Wikipedia list are:
2017 - 2018 (115th Congress): 14, 3 flips to D
2019-20 (116th Congress): 6, 1 flip to R
2021-2022 (117th Congress): 15, 1 flip to R, 1 flip to D
2023-2024 (118th Congress): 11, 1 flip to D.
The voters speak every 2 years in this way and in the special elections and that is what makes it a democracy.
They also spoke by giving Trump a very narrow margin in the House to help the legislators keep Trump in check
If he loses 3 seats this year he'll lose control of the House. That would be an example of democracy working.
They are already getting pushback. This was a town hall which the Republican Rick McCormack held in one of the more liberal districts of his constituency. Like all the House representatives he faces re-election in 2026 in the mid terms. He won his seat with 64.9% of the vote in 2024.
Q. Why is a supposedly conservative party taking such a radical and extremist and sloppy approach to this?
…
Q. Trying to do more with less. That's reasonable. What's not reasonable is taking this chainsaw approach, which they. Obviously admit when they fired these people and then decided, oh, we fired the wrong people, we got to bring them back in. Why is this being jammed down the pipe so rushed and sloppily so.
Full speech with Q/A here Congressman McCormick Town Hall (February 20, 2025)
Judiciary are currently keeping Trump in check - not being intimidated by him
The Judiciary are the ones that keep Trump in check right now. They are not being shy and not being intimidated.
Judge Chutkan is considering tomorrow whether to put major restrictions on what Musk and DOGE can do as a temporary restraining order.
Now, Trump can try to ignore those court orders.
However that then leads to the risk of contempt of court orders.
If he defies contempt of court orders all the officials he orders to ignore them risk being jailied or fined.
Finally if after many steps he orders the US marshals not to carry out the contempt of court orders to jail or fine officials - AND IF THEY OBEY HIS ORDER [most likely they obey the court order instead] that then becomes a constitutional crisis.
That does NOT mean an end to the US Constitution - that can never happen in the USA.
Instead it means there is a crisis because somehow they have to resolve what happens next in that situation.
At this point many in Trump's own part will start to get very uncomfortable with what is happening.
So - then the courts, and Congress will need to get involved in deciding what happens next.
We aren't there yet and hopefully we never will get there.
The courts are moving fast, for them. Trump is compling with the restraining orders though often slowly and in ways that may not quite match what the judges want - leading ot the judges clarifying their original orders - so all that is playing out.
Then Trump surrounding himself by loyalists may seem great to him to start with. He has nobody around him to tell him he's making a big mistake. So he can make lots of mistakes and nobody tries to stop him. BUT they are still mistakes. Rookie mistakes.
For instance as in his first term he is remarkably ill prepared and careless when it comes to court cases. He loses cases that he would have won with just a bit of preparation. The judges are often incredulous at the cases they are asked to resolve. A high proportion of the cases are going to fail on the "arbitirary and capricious " principle - and with the DoJ trying to justify what they are doing iwth ad hoc reasoning that wouldn't convince any judge or justice.
In this way he establishes lots of precedents in exactly the wrong direction.
QUOTE STARTS
"Every other presidential administration in modern American history spends a fair bit of time explaining in legal language and in legal arguments, why what they're doing is actually legal," said Deborah Pearlstein, a constitutional scholar at Princeton University who served in the Clinton White House.
"Even if it appears like a huge power grab and almost certainly beyond the scope of the president's power, they have some argument," she said.
But she said so far that is basically not happening in the second Trump administration. And for that reason, it doesn't seem to be rolling out this DOGE restructuring effort in a way that would be in its own best interest — legally speaking.
Pearlstein said the conservative Supreme Court might be sympathetic to some of the ways the president appears to want to expand his powers.
But she says you learn quickly in the White House not to do anything without having some really good lawyers in the room to make sure you are going about it in the right way. She says Trump and billionaire Elon Musk, who's heading the DOGE effort, appear to be figuring they can just do whatever they want and let the lawyers figure it out later.
"That seems to me pretty likely with some of the DOGE stuff to be what's going on," Pearlstein said. "And in part for that reason, a lot of that stuff is going to get struck down by the courts pretty quickly."
https://www.npr.org/2025/02/15/nx-s1-5297925/courts-block-trumps-doge-actions-chaos-panic-not-proving-to-be-best-legal-strategy
So he gets off to what seems like a great start.
Because he has surrounded himself with loyalists, he has nobody in his immediate circle telling him to stop. He can make numerous mistakes, dig vast numbers of holes for himself to fall into and nobody is there to tell him he has done anything that's a mistake.
So he seems strong to start with but then he'll be hit by a whole raft of legal lcases, already started - and he has no plans for what he does afater that.
Once this is all over and he's done as much as he can with executive orders and most of them are stopped or reversed he then has to work with a Congress with
the Democrats pretty much united against him,
his own party, the Rrepublicans also not enthusiastic about him in the way they normally would be with a new president and
the entire executive branch no longer working so well and much of it turned against him too.
It is not a good long term strategy.
And remember that everything Trump can do with executive orders, once all the court cases are settled - the next president can undo on day 1.
Of course some things will take longer than that. It takes time to rebuild an entire agency - though the next president would undoubtedly have the authority to rebuild an agency that Congress has legally required the executive to have and provided the funding for.
But that is where the legal cases come in.
They will at least somewhat limit what he can do by way of trying to dismantle the executive.
Trump can’t save any money this way - he is instead adding unnecessary expenses for the existing funding to cover
Also all this is rather quixotic because he can't actually use this as a method to save money. He can use it ironically to waste money because he still has to spend all the money he would anyway - but now he is spending much of the Executive's budget on paying staff that he has put into administrative leave so they do nothing of value. a lot of it will be needed to undo as much as he can of the damage he's done already.
He cant reduce the funding for most things except throgho Congress but there is no way that Congress will fall behind his plans.
So it's not going ot come to anything. Even by say the summer this willi be in the rear view mirror and he will have very little to show for it. Except adding many new problems he wouldn't have had if he'd just done the far more normal thing of letting the agencies continue their work while DOGE audits them and looks for genuine efficiency savings.
Recent notable successes:
Domestic funding freeze paused and Trump ordered to resume all the paused funding
Foreign funding freeze paused and Trump ordered to resume all the paused funding
Forced to restore the medical web pages removed from the CDC and other websites that claim FALSELY that there are no transgender people
For
Trump is actually not acting in a way that is likely to lead to long term success in his agenda to spend less on US civil service.
He has no authority to reduce the funding without support of Congress.
What he has done so far has added to the expenses for the government, not reduced expenses. Somehow the US government will have to find the funding to try to undo what he has done - it will probably have to take this from mandatory and discretionary funding so the overall expense will be the same for the government but it will achieve less for its money this year.
There is a fair bit of inefficiency in the government. What DOGE set out to do was a reasonable mission, to look for inefficiencies and find ways to do more with less.
But sadly they didn’t do that. They just abritraily shut off funding for no reason. This is not going to work long term.
What he has done is
fired most probationary federal employees, which he has the right to do
this creates a choatic situation especially in the CDC and the executive will have to spend a lot of money to rebuild the expertise it has lost
put many federal employees with tenure into administrative leave which means the government continues to pay their salaries but they are not permitted to do any work for the government
courts have ordered him to return them to work in many cases and the end result is that the government had to pay employees to do nothing
Gave federal employees an incentive to leave that the government would pay 7 months of salary while they searched for a new job
he got 3% to leave. Since 6% leave every year anyway - this is not going to make a significant difference and he ended up paying 7 months salary to employees who might well have left with no financial incentive
temporarily paused domestic and foreign funding
courts ordered him to resume the funding
He still has to pay the mandatory and discretionary amounts the same as before.
He can only save about $8 billion a year from things genuinely within the control of a president.
Also, he has done this in an unplanned chaotic way. He is trying to establish some kind of a precedent to do impoundment, like Nixon attempted in the 1970s - to just not spend the money allocated by Congress.
The legally astute way to do this would be to try small things on the margin, legal cases he might win, carefully thought out with careful justification and to get it all the way to the Supreme Court and get some wins there. Then to try to build on those successes to gain more power over the purse for the president.
But instead he does it without any attempt to even go through the Administrative Procedures Act.
He has just ignored all their responsibilities and requirements under the Impoundment Control Act and the Administrative Procedures Act and other laws to say what they are going to do, do it in an orderly fashion, explain their actions etc. Just cut things off with no explanation or warning and no legal briefs for judges.
This is why he gets all these Temporary Restraining Orders.
Most of them are paused under the “arbitarary and capricious” standard of the 1949 Administrative Procedure Act.
The goal for challengers is for judges to find an agency's policy so absurd that it is considered arbitrary, canceling its enforcement. Asked what this means in practice, Super explained: "That means that there have to be [permissible] reasons for things that are done."
"It's fine if I decide that your business should be suspended because you're selling dangerous foods, but it's not fine if I say your business should be suspended because I don't like you," he said.
…
When agencies have a certain way of doing things — then suddenly depart from those practices without any explanation — a court may consider that departure arbitrary. While agencies do not have an obligation to issue lengthy explanations of policy changes, they typically must do enough to acknowledge the change.
…
Some courts have already temporarily blocked some of Trump's executive actions, and there may be more actions ahead. However, a temporary pause is not the final word on whether an action is lawful.
After an action is halted, it cannot be enforced while the federal courts determine its legality.
If a court does determine a policy is unlawful, the federal government may still appeal it. Many of these challenges are expected to reach the Supreme Court, which will have the final say on whether the action is truly arbitrary.
https://www.npr.org/2025/02/08/g-s1-47098/trump-arbitrary-lawsuits-gender-executive-actions
Trump can’t change the mandatory funding unless Congress changes the laws that set that funding up.
He can’t do anything about the interest.
So that leaves the discretionary funding. That is renewed every year but can be fillibustered and when that happens the last year’s funding must be used until it’s resolved.
The president does have some flexibility for some of the mandatory funding by rule making. For instance he can
change eligibility criteria for SNAP food stamps
student debt forgiveness, or
emergency agricultural subsidies.
Presidents often overspend on such things over the original intent of Congress.
Only $8 billion that the president can save by reducing overspend
The Committee for a Responsible Budget says that Congress could save $80 billion in 10 years or $8 billion a year by restricting the president's power to overspend.
… Requiring that future actions in these areas be budget neutral would save $80 billion [over 10 years] relative to the Congressional Budget Office (CBO) baseline and has the potential to save much more, depending on actual presidential actions.
I’m not sure how easy those are to do. They are things some people would miss, e.g. reducing student loan forgiveness, but are within control of the president and he could look at them and see if any of them are politically acceptible.
But that's about it. The rest has to be spent.
Then, there are some things he can save with the help of Congress. He could save $700 billion in a decade, or $70 billion a year, if he followed all the recommendations of the Committee for a Responsible Budget which they say has bipartisan support and could be passed in Congress. See: $700 Billion of Easy Deficit Reduction
But this is nowhere near what Trump wants to achieve.
TEXT ON GRAPHIC:
Why Trump can make only minor reductions in expenses without Congress:
- only $8 billion savings in easy control of the president
Trump has some ability to remove funding from programs he doesn't like and can of course eliminate fraud and wastage.
However all the money freed up in this way has to be spent on the same program he freed it from.
He can only reduce funding after doing this with support from Congress
Mandatory funding: Fixed amount set in law
- Can be reduced by simple majority in both chambers (reconciliation) but
- tend to be popular with significant Republican support
Discretionary funding: Must be renewed every year
- Reductions can be stopped by Democrat filibuster in Senate
- Previous year's funding used if filibustered
Net interest: 2/3 of the interest is paid to Americans, e.g. pension funds
By impoundment control act,
- president has to spend all this money
~0.13% of savings by executive without Congress
Many other ways to balance budget in 2030s:
- raise retirement age
- increase immigration (including young entrepreneurs like Musk was)
- save on budget
- save on tax fraud
- VAT
In 2020s priority is to boost economy which needs funding.
. File:2023-federal-budget-breakdown.png - Wikimedia Commons
Trump will run into challenges trying to - raise the debt limit, or - pass a continuing resolution to keep the government funded or - pass his reconciliation budget bill or - his discretionary funding bills for 2025
Trump has a whole series of financial deadlines coming up
Debt limit special measures expire early June 2025
Continuing resolution to fund the government expires March 14, 2025
He wants to pass a bill to fund his manifesto pledges such as to deport large numbers of illegal immigrants or increase border security
The tax cuts expire in December
All this is made far harder because of his executive orders that alienated moderate Democrats that would otherwise help him get these bills passed.
In Biden's presidency the Republicans in the House depended on :Democrat support to pass bills. But with Trump - the Republican party has been doing things that alienate even moderate Democrats and they also are in a different situation - they may be less inclined to join the Republicans to help them pass bills for Trump to sign, than they were for the bills for Biden to sign. .
So it will be very hard for the Republicans to do any of these things that are usually passed in a bipartisan way.
The biggest obstacles are the debt limit separately or to pass a continuing resolution on March 14 to avert a government shutdown.
The first crisis is likely to be a government shutdown on March 14th. Trump needs Democrat votes to continue funding the government. They can filibuster this in the Senate and though in principle he could pass it in the House if every Republican voted for it, in practice the Republicans always rely on Democrats to pass continuing resolutions in the House too since several dozen Republicans always vote against them on principle.
They may have to do a full year continuing funding which means re-using the Democrat funding under Biden for this year for the entire year because of inability to come up with a Republican budget for the discretionary funding with Democrat opposition because of the freezes.
But the Democrats may not be willing to pass even that, because of the Govoernment freezes until that’s resolved.
QUOTE
Given the time crunch, lawmakers are likely to fall back on at least a short-term stopgap next month, if not a “full-year” funding patch that keeps federal agencies running on current spending levels through September. As Democrats demand commitments that the Trump administration actually spend the money they enact, some lawmakers have begun to voice concerns that there's a higher chance of a shutdown this time around.
Richard McGahey writing for Forbes thinks it’s likely that Democrats will force a shutdown in order to get Trump to back down on his funding freezes - and that some Republicans will join them.
QUOTE STARTS
Recent CRs have been bipartisan, relying on significant support from Democrats, largely because a hard-core group of Republicans refuse to vote for CRs without massive spending cuts that are unacceptable to Democrats (and some Republicans). So Democratic votes have been needed to pass a CR, even when Republicans control both houses of Congress.
Republican opposition to CRs is substantial. 38 Republicans in the House and 11 in the Senate voted against the last CR in December 2024, with no Democratic votes in opposition.
The situation is even tighter because some moderate House Republicans fear cutting popular programs could cost them their seats (and the Republican House majority.) Representative Rob Bresnahan (R-PA),who defeated a Democratic incumbent in 2024 by 6252 votes, recently warned “if a bill is put in front of me that guts the benefits my neighbors rely on, I will not vote for it.”
In the past, Democrats reached a compromise with Republicans, and a spending bill was passed without votes from the hard-core conservatives. But Democrats are now fighting against Trump’s dramatic actions to withhold spending and interfere with legally approved government operations and are much less likely to support a Republican-designed CR.
So there likely are no Democratic votes for a Republican CR with deep spending cuts. House Minority Leader Hakeem Jeffries (D-NY) told his House member they should refuse to support any CR unless President Trump’s spending freeze is “choked off.”
He sees parallels with the 34 day funding freeze in his first term. Trump eventually gave in because of the negative effects of the shutdown
In his first term, Trump presided over the longest shutdown in American history—34 days—to try and get funding for border walls with Mexico. Trump eventually gave in because of the negative shutdown effects—airline delays, closed national parks, no new small business loans, delayed tax refunds, and a volatile stock market and slowing economy. (The Congressional Budget Office estimated the shutdown permanently lost $3 billion in GDP.)
Considering Trump’s aggressive style, and the already fierce divisions in Washington over Trump’s hostile attacks on essential government operations and services, it’s hard to see an easy compromise that keeps the government open.
If Democrats stay united, and Trump and the Republicans won’t compromise with them, a shutdown is very likely. This will harm people who rely on government services and damage the economy. And given the aggressive government disruption being done by Trump (and Elon Musk), the shutdown is one of the only leverage points Democrats currently have to push back.
Then on the debt limit, Bloomberg looked only at enacted debt limit rises. There are 47 House Republicans who have never voted for a debt limit rise that became law.
TEXT ON GRAPHIC
Bloomberg Analysis
Trump’s big obstacle with his expensive promises such as deportation and border security
47 Republicans have always voted against debt limit rises
So he needs bipartisan support from Democrats for expensive projects
He needs to raise the debt limit probably by early June.
In both cases there are several dozen Republicans never vote to raise the debt limit or to continue funding the government.
All this gives the Democrats quite a lot of leverage.
At present the Republicans have no solutions to these issues.
Then he has the big reconciliation bill, the Republican version of Biden’s Inflation Reduction Act. They can pass a bill if it is only about mandatory funding, every element has a cost. The Democrats can’t filibuster it.
Trump’s problem is that again several dozen House republicans will vote againt it, thou8gh he likely can get it through theh Senate - the opposite from Biden’s problem - he could pass it in the House but needed to get every senator on board which he eventually did.
It’s not at all clear how Trump can get this across the line.
Trump spending political capital in quixotic attacks on the executive
I hope a bit of humour will help here. It’s not meant unkindly, it’s meant to help scared people.
TEXT ON GRAPHIC: Trump is like Don Quixote attacking windmills, falsely believing they are enemy giants
- civil servants are not his enemy and he can only save ~0.13% without Congress.
Graphic from https://commons.wikimedia.org/wiki/File:Don_Quixote_fighting_windmills.jpg
This is the famous scene in Cervantes' novel as retold by James Baldwin:
QUOTE STARTS
Then he couched his lance; he covered himself with his shield; he rushed with Rozinante's utmost speed upon the nearest windmill.
The long lance struck into one of the whirling sails and was carried upward with such swiftness that it was torn from the knight's firm grasp. It was whirled into the air and broken into shivers. At the same moment the knight and his steed were hurled forward and thrown rolling upon the ground.
[Illustration] from Stories of Don Quixote by James Baldwin
Sancho Panza hurried to the place as quickly as his dappled donkey could carry him. His master was lying helpless by the roadside. The helmet had fallen from his head, and the shield had been hurled to the farther side of the hedge.
"Mercy on me, master!" cried the squire. "Didn't I tell you they were windmills?"
"Peace, friend Sancho," answered Don Quixote, rubbing the dust from his eyes. "There is nothing so uncertain as war. That wicked enchanter, Freston, who stole my books has done all this. They were giants, as I told you; but he changed them into windmills so that I should not have the honor of victory. But mind you, Sancho, I will get even with him in the end."
"So be it, say I!" cried Sancho, as he dismounted from his donkey.He lifted the fallen knight from the ground. He brought his shield and adjusted his helmet. Then he led his unlucky steed to his side and helped him to remount.
https://www.heritage-history.com/index.php?c=read&author=baldwin&book=quixote&story=windmills
I don’t think there is any carefully planned long vision here. Trump is just behaving as he used to when he was celebrity host of “The Apprentice” - firing people.
But as president he doesn’t have the same powers to hire and fire that a CEO of a company has. He can fire probationary employees, and political appointees. He can’t fired tenured staff, and he has hardly no control on how much he spends on the executive without help of Congress.
Trump and Musk seem to have no idea how the government works. Trump has surrounded himself by loyalists who all tell him that this will work. But they are wrong. They are careless hasty people who don’t bother to take the long vision and don’t understand how important it is for the executive to work with Congress and the courts to achieve long term successes - even over a period longer than months never mind years or decades.
See my:
Trump is spending the good will a new president has with pointless fights - undermining his own position in government - setting himself up for a much less effective presidency
This blog post will sound counterintuitive because Trump is trying to act like a big boss in a company, a CEO, like his celebrity role in “The Apprentice, You are fired”. But he doesn’t have that power as president.
So could this lead to a constitutional crisis and if so what does that mean?:
First what is a US Constitutional crisis?
The four types of constitutional crisis
538 has a useful primer on this on the 4 types of constitutional crisis. It mentions government shutdowns as a mild type of crisis since after all that's government not working as intended in the Constitution.
It doesn't mean the rule of law is overturned. It means some aspect of the US Constitution, in this case the oversight of the president by the Judiciary - is being challenged and needs resolution.
In a fight between the executive and the courts - the courts have a great deal of power. For instance they could fine or jail everyone who obeys Trump's illegal orders. They will do that only as a last resort. But the judges have the final word.
538 has a useful list of the four types of crisis.
1. The Constitution doesn’t say what to do.
Example when William Henry Harrison became the first president died in office, the US Constitution didn't say what the role of the vice president would be. Nobody knew if Vice President John Tyler was a real president or just an acting president or what happens next. He just asserted that he was president and that has been the convention ever since.
2. The Constitution’s meaning is in question.
Example, whether the Supreme Court can be expanded.
3. The Constitution tells us what to do, but it’s not politically feasible.
Example Bush v. Gore. Congress could have selected the president but it would have been politically problematical and cast doubt on the legitimacy.
The Supreme Court stepped in and cut the recount short making Bush the president. It could have been a crisis but Gore conceded and didn't try to fight the Supreme Court.
4. Institutions themselves fail.
This happens often with government shutdowns. The Constitution doesn't give a solution if the government can't agree to continuing funding.
So it shuts down all except essential services which is hardly ideal.
If the executive disobeys a court order then that's an example of this fourth type of crisis.
Here I'm summarizing this page from NPR
https://fivethirtyeight.com/features/constitutional-crisis/
Not yet a constitutional crisis
It is not yet a constitutional crisis according to law experts.
The Trump administration is in legal fights in the courts but hasn’t yet defied any orders.
QUOTE STARTS
Law experts say it hasn't reached a full-blown crisis quite yet
Kristin Hickman, a professor of administrative law at the University of Minnesota Law School, urges caution on talk of a constitutional crisis.
The Trump administration is still entrenched in legal fights in the lower courts and, so far, has not defied any orders from the U.S. Supreme Court, the nation's highest court, she noted.
"We're not there yet, and we have no guarantee we're ever going to get there. It is not healthy for our body politic for us to overreact and roll around a lot of overheated rhetoric," she said.
...
Speaking to All Things Considered on Tuesday, University of Virginia law professor Amanda Frost said she was "deeply concerned, as I think every American should be, about the way in which executive power is being abused, misused and overstepping the bounds of the authority," referencing actions such as the Trump executive order to end birthright citizenship.
"But I will say that as of today, at this moment, the executive branch has not taken the position that it can violate court orders or that it does not need to comply with court orders," she said.
https://www.npr.org/2025/02/12/nx-s1-5293132/trump-vance-constitutional-crisis-court-rulings
Trump himself says that he always abides by the courts. So there is that.
Trump himself says that he always abides by the courts. So there is that.
QUOTE STARTS
Q. If a judge does block one of your policies, part of your agenda, will you abide by that ruling, will you comply?
A. I always abide by the courts and then I'll have to appeal it. But then what he's done is he slowed down the momentum and it gives crooked people more time to cover up the books.
If a person's crooked and they get caught other people see that and all of a
sudden it becomes harder later on.
So yeah yeah the answer is I always abide by the courts and will appeal but appeals take a long time and I would hope if you go into a judge and you show him here's a corrupt situation we have a check to be sent but we found it to be corrupt do you want us to send this corrupt check to a person or do you want us not to give it and give it back to the taxpayer - I would hope a judge would say don't send it give it back to the taxpayer.
But what if he doesn’t do as he promised?
Example of responding slowly and not quite as the court intended - replacing the pages removed by the CDC about trans
The administration has been slow to respond sometimes and also responded in ways that are surely not as intended.
For example he ordered the CDC to take down all pages that talk about transgender, or refer to “pregnant people” (because trans men can sometimes still become pregnant after transitioning) or mention the term LGBTQ
It’s unprecedented and very odd. I found a wonderful painting by Miro which captures what Trump is doing perfectly to my mind :). He is like a dog barking at the moon, or a wolf baying at the Moon in a popular expression.
He is attempting something that is impossible as a dog can’t frighten away the Moon.
TEXT ON GRAPHIC:
Mayo Clinic, Cleveland Clinic, John Hopkins Center, etc. are all protected and their websites can't be edited by the US government by the 1st amendment.
Attempting the impossible - a dog can’t frighten away the Moon.
Similarly, Trump can’t change medical truth by getting the CDC to remove web pages.
Dog labeled Trump.
Moon labelled: Moon of truth about trans.
Dog barking at the moon - Miro
Trump editing the CDC website.
Painting here: https://www.joan-miro.net/dog-barking-at-the-moon.jsp
A judge ordered those deleted pages on the CDC and FDA to be restored - the ones that talk about the medical reality of trans amongst other topics. https://www.politico.com/news/2025/02/11/health-agency-webpage-removal-lawsuit-00203582
But what they did will surely not count as complying with the court order so I expect further legal challenges.
Trump's team has removed the letter T from LGBTQ and removed the word transgender almost everywhere on the page. The only section on transgender is the section: "YRBS transgender report"
It has also added a notice:
QUOTE Per a court order, HHS is required to restore this website as of 11:59PM ET, February 14, 2025. Any information on this page promoting gender ideology is extremely inaccurate and disconnected from the immutable biological reality that there are two sexes, male and female. The Trump Administration rejects gender ideology and condemns the harms it causes to children, by promoting their chemical and surgical mutilation, and to women, by depriving them of their dignity, safety, well-being, and opportunities. This page does not reflect biological reality and therefore the Administration and this Department rejects it.
TEXT ON GRAPHIC:
Original page
Restored page
Removes almost all references to transgender.
Sure to get more legal challengesRestored page: https://www.cdc.gov/healthy-youth/lgbtq-youth/health-disparities-among-lgbtq-youth.html
Original page: https://web.archive.org/web/20250117215525/https://www.cdc.gov/healthy-youth/lgbtq-youth/health-disparities-among-lgbtq-youth.html
I have never seen anything so bizarre in my entire life! Apparently according to Trump nobody is intersex or XX male or XY female or trans. And they refer to this as "biological reality"??!!
The medical evidence is very clear. First the researchers, then medical professionals and then gradually ordinary folk.
See my:
Trump can't change the medical reality of trans by removing CDC web pages - it's like a dog barking at the Moon - Mayo clinic, John Hopkins, Cleveland Clinic etc continue to cover the truth in the USA
As some of you will know, the CDC has taken down all pages that talk about transgender, or refer to “pregnant people” (because trans men can sometimes still become pregnant after transitioning) or mention the term LGBTQ.
I expect further legal cases as this surely doesn't accord with what the judge ordered the team to do.
So - we can expect things like that - attempts at complying while not really complying leading to more court orders.
But what if after all that he flat out doesn’t do as the court orders him to do>
Well eventually it could lead to a constitutional crisis. But not right away - there are many steps first.
A constitutional crisis does NOT mean rule of law breaks down - example of government shutdowns
And a constitutional crisis does NOT mean that the rule of law breaks down. That can’t happen in the USA with a strong constitution. Instead it means that some aspect of how the US Constitution works is unclear.
We have a simple example of this most years in a low key way - a government shutdown. The US Constitution has nothing in it about how to resolve a government shutdown. This makes it technically a constitutional crisis, in a small way. Each time the government has to play it by ear, though they have established various conventions to help navigate these repeating mini constitutional crises.
Potentially a larger scale crisis, more like Watergate - but only after many steps - Watergate took years to play out
Of course we are talking about a larger scale of crisis than that. Potentially larger scale even than Watergate in the worst case, which hopefully never happens.
The Watergate scandal unfolded slowly over many years from 1971 through to 1974 when finally Nixon resigned to avoid impeachment.
https://www.history.com/news/watergate-scandal-timeline-nixon
There are many steps here too - though of course a very different type of a crisis.
Courts have strong contempt of court power, they can even imprison people or fine them huge fines if needs be for contempt of court. They won't want to do that but they aren't in fact powerless, they just don't want to wield their power unless absolutely forced to.
The Brennan center maps out what the courts can do:
. What Courts Can Do If the Trump Administration Defies Court Orders
First, Courts can use the contempt power to
force the party to take action or
punish them for failing to carry out an order
Federal courts have never held a sitting president in contempt of court. But they have often done that with Federal officials.
The steps are
Issue a clearer stricter order to clear up misunderstandings
Issue a writ of mandamus to perform ministerial duties (only non discretionary duties)
Sanction attorneys for helping their clients defy a court order - penalties can include fines, suspending the attorney or disbar the attorneys (so they can no longer practice law)
Issue a contempt of court order
Then it’s the US Marshalls who carry out that order. The legal code is very clear that it’s their duty to enforce all court orders.
(a) It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.
It doesn't provide any mechanism for the president to override the court order.
See:
. What Courts Can Do If the Trump Administration Defies Court Orders
The Brennan center doesn’t even suggest a possibility of the US Marshals failing to carry out their order.
All the stories about this idea go back to a retired Federal judge called Nancy Gertner.
She says:
The marshals would have to enforce whatever orders the judge entered. The problem is that the Marshal Service is under the Department of Justice, and if Trump wanted to fully not comply, he could direct the Department of Justice not to comply.
But would they? The Brennan center didn’t suggest they could.
We are talking about the idea of US Court Marshals betraying their oath of office here, which seems unlikely- and would make them also subject to discipline from the courts.
If they did it would be a constitutional crisis -just about this particular issue - how do you deal with a situation where the US Marshals en block break their oaths of office.
One retired Federal Judge Nancy Gertner said she thought this could happen but it seems very hypothetical. I can’t find much by way of discussion of this yet. It’s here: https://www.npr.org/2025/02/11/nx-s1-5292199/retired-federal-judge-nancy-gertner-trump-federal-funding-freeze-restraining-order
But anyway, let’s map out an example of a worst case, for the sort of criss they are talking about here.
There are numerous steops to get there. It would be a crisis if
The courts order the executive branch to do somthing,
The executive branch don't do it.
The courts nudge the executive to do it.
The executive still doesn't do it.
The courts then ask the executive to explain their actions saying that if they don’t, they will call it contempt of court.
the executive branch doesn't give an adequate reply
[still not a constitutional crisis]the courts then start contempt of court.
the executive branch still do nothing.
the courts then jail officials of the executive branch (not Trump, the officials named in the court case) or give them hefty fines.
[still not a constitutional crisis, it’s an unusual situation but so far everything is as expected for this unusual situaiton under the US Constitution]the executive orders the DoJ not to carry out the contempt of court order.
[this is very close to a constitutional crisis but it stops short of one so long as the U.S. Marshals service follows the orders of the court rather than the executive]the U.S. Marshals Service which has taken a vow to protect the US constitution obeys the executive instead of the courts
[now it is a constitutional crisis]
But would this ever happen?
The US Marshals oath of office is clear, they swear the same oath as all the US civil servants except the president.
Their oath as for all officers in the executive except the president is to support and defend the Constitution and to faithfully discharge the duties of their office of US Marshalls.
QUOTE An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.
So for this Constitutional Crisis to happen, Trump has to order the US Marshals to break their oath of office and they have to do as he said - which seems a very unlikely scenario .
If it gets that far some members of Trump's own party in Congress will start to get very uncomfortable about what is going on.
Lisa Murkowski already thinks that the executive is acting beyond the limits of the law.
QUOTE STARTS
“To have the executive basically come in and dismantle something that was legislatively created — that's outside the bounds of the executive,” she said Monday. “So it requires us, in the legislative branch, to then assert our responsibility, which is to not cede the authority.”
…
“You're now having some in the executive branch saying, ‘We don't think the courts should be deciding this. We think that this is our authority,’” she said. “You then call into question the legitimacy of your courts. That’s not … That's not a recipe for good governance.”
…
“The means and the methods actually matter, and the rule of law matters,” she said.
There are only some situations that can play out like this, but one of them would be the order to pause the freezes.
If it does get as far as that step 11 and the US Marshalls decide to follow orders of the executive instead of the courts, it's not clear how it's resolved. Could be through the courts and the Supreme Court. Could be through Congress.
Eventually if it gets bad enough Congress can step up with impeachment.
It's a constitutional crisis because the US Constitution doesn't say what to do at this point.
US Constitution and rule of law would continue for everything except this issue of contempt of court for Federal officials
However, the US Constitution still applies for everything else. It is not suspended, the rule of law continues, and in most situations it is totally clear what the law is based on the US Constitution intepreted by numerous Supreme Court cases and the legal code as created by Congress and interpreted by the Judiciary.
But in this particular case of the executive ignoring a court order and ordering US Marshalls not to carry it out - then it's not clear what happens next. So the courts and Congress together have to work it out.
But the DoJ in practice is steering well away from anything like that.
Not currently a constitutional crisis
You might think that it’s a constitutional crisis from tweets by Vance and Musk. Especially the tweet by Vance
If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power.
There the key word is “legitimate”.
We can turn what he said into a tautology by emphasizing the word “legitimate”.
https://substack.com/home/post/p-156855163?utm_campaign=post&utm_medium=web
I know that’s not how it was understood by his critics. But it is a possible interpretation of the words and it can help us understand the situation.
What Judges can do is rule on whether the things a president tries to do are legitimate. So it was a bit of a tautology. If it’s legitimate the president can’t do it but it’s the judges that rule on whether what a president does is legitimate.
What Vance was implying indirectly, which is false, is that the president gets to decide what is legitimate. No he does not.
Anyway whatever Vance meant, so far, Trump wasn’t challenging the authority of the courts. He is just going through the usual process of appeals and so on.
QUOTE STARTS
Last week, I wrote that the U.S. will be a in a constitutional crisis if the Trump administration begins ignoring judicial rulings. That leads to the natural question: do these comments from two of Trump’s closest confidants signal that we’ve reached that point?
My answer remains “no,” because of the stark differences between how Musk and Vance have responded to unfavorable court rulings online and how the administration has actually responded to those rulings in the courts. Despite its aggressive Twitter statements, the Trump administration is continuing to comply with the flurry of judicial orders blocking their more ambitious actions.
https://www.nytimes.com/2025/02/11/opinion/ezra-klein-podcast-quinta-jurecic.html
Quinta Jurecic goes on to say that if Trump had taken a slow careful approach and tried one small action at a time pushing at the limits of what a president can do the Supreme Court might accept it. Bit by bit he might have been able to expand the power of the executive in that way.
However he is doing it in exactly the wrong way to get sympathetic rulings. Things like this, immediately and suddenly trying to close down USAID - once it gets to the Supreme Court they will surely rule against.
He says that we should be careful about seeing this as part of a careful well thought out plan. It's not, it's sure to backfire.
QUOTE STARTS
So for that reason, I am very skeptical that things like trying to assert a really aggressive presidential impoundment authority or assert a sensible reinterpretation of birthright citizenship are going to make it through, designed as they have been designed. There are a lot of ways where there are particular authorities the executive could have used to say: We’re going to tweak this funding, we have this authority, etc.
Or they could have said: Actually, Congress puts this condition on this funding stream, and we think that condition is unconstitutional because there are national security concerns. And we’re going to make an extremely targeted court case to argue that the legislative constraints that Congress has placed on the executive’s ability to impound funds are unconstitutional and convince the courts and the Supreme Court on that.
That would be the clever way to do it. And in a way, that would have given you a lot more luck in the Supreme Court. The way that they have actually done it — just kind of coming in with a sledgehammer and smashing everything — is not likely to get the courts on their side.
So if this is a kind of evil master plan to destroy constitutional government, they’re not doing it very well. That doesn’t mean that it’s not extremely dangerous. It is. But I think it’s important to be careful about the extent to which we portray this as part of a very well-thought-through plan.
https://www.nytimes.com/2025/02/11/opinion/ezra-klein-podcast-quinta-jurecic.html
He says that the immunity ruling was a surprise, perhaps it's partly because it was a ruling about something that happened a long time ago - but even with that in mind it seems very unlikely that the Supreme Court says that this sort of thing is okay
Trump's admin has just made no attempt at going through normal processes - just ignored all their responsibilities and requirements under the Impoundment Control Act and the Administrative Procedures Act and other laws to say what they are going to do, do it in an orderly fashion, explain their actions etc. Just cut things off with no explanation or warning and no legal briefs for judges.
It's the usual thing with the Trump admin. They might well have been able to do a fair bit by working within what's permitted to the president. But by jumping right out of that they create such a chaotic situation with no even attempt at justification and that's precisely the situation where they can pretty much guarantee to lose legal cases. Because judges above all need things to be done according to the proper procedures.
So - Trump is likely to lose most of the legal cases.
The main issue is that the legal process is slow. Has to be to do things properly, carefully.
But legislators in Congress could act far faster if the Republicans joined the Democrats to stop this and assert their right to be the body that decides if agencies can be dissolved or moved.
But Congress has become very partisan - under Biden as well as under Trump - members don't want to act against the executive if it is the executive of theire own party.
Instead they tend to say to leave it to the courts so they don't have to be personally responsible for the decision.
So - I think it is possible that Trump does go too far and as happened with Nixon his own party decides to join the Democrats to do something to control what he is doing by passing a law with a 2/3 majority in both chambers to override the presidential veto or something like that.
But we aren't there yet, so we are left with the legal process. And it will get there but it's much slower than what Congress can do.
However they can pause many things as they are doing.
Trump can’t order military or paramilitary to shoot at civilians
This is very different from ordering the US marshals to ignore a court order. This wouldn't be a constitutional crisis, it would just be plain illegal by settled law.
It would become a constitutional crisis if Trump organized a paramilitary not the soldiers and told them to do it, and they did it, it went to the courts, they were convicted - AND he pardoned them all.
But that would have a quick resolution as this would be so extreme that his party would convict him of impeachment. With Jan 06, his own lawyers gave this example of him ordering a seal team to execute someone and them complying. The defence's point there, that most journalists never mention - is that Trump's own defense argued that he would be convicted if this happened. It was part of a larger legal argument.
Both the prosecution and the defence and all the Supreme Court justices were in agreement that Trump would be impeached and convicted if this happened, if he ordered an assassination. They were talking about assassinating a political rival if I remember right But that would include ordering soldiers or paramilitary to shoot at civilian protestors, it's much the same.
The moderates in his own party are already uncomfortable with him not complying quickly with court orders. They would not stand for him doing something as illegal as this
It would NOT protect the people that Trump ordered and it would NOT protect Trump if he ordered a military or paramilitary to kill or injure civilians.
So, if Trump orders a miltiary or paramilitary to fire on civilians the people he ordered CAN be brough to trial and convicted. Trump himself can be impeached and convicted.
Even for the pardon power, with absolute immunity - Trump could be brought to the courts if, say, he freed a wealthy person from prison in return for a bribe of billions of dollars - or any exchange however small, even for a $1 bribe
Presidential immunity is only presumed for official acts, not present at all for unofficial acts and even for the pardon power, though all agree he has absolute immunity for pardon, he is not immune if he combines the pardon with illegal things.
For instance he is no longer immune if he does pardons for a bribe.
E.g. suppose a billionaire offered Trump $10 billion dollars to free him from jail. Presidential immunity wouldn't protect him if he accepted the bribe.
That is an example the Supreme Court discussed (not with any specific figure for the amount of the bribe). They said it was for lower courts to decide, and it's not clear exactly how the case would proceed since the pardons themselves couldn't be used as evidence - but they all agreed that bribes for pardon can be prosecuted.
The decision is hugely misunderstood in the press. After all the Jan 06 case was still proceeding on election day. Trump would certainly have been brought to the courts if he had lost the election.
It would NOT protect him if he ordered the miltiary or paramilitary to fire at civilians.
Trump's own team argued with the Supreme Court that Trump would be impeached and convicted if he did something like that.
The Supreme Court in their deliberations said that even though he'd likely be impeached and convicted, he is not immune if Congress fails to impeach him. For example he might conduct a crime on the last day of his term. It makes no sense to say he's immune from prosecution just because he wasn't impeached. But generally - they all agreed that he is not immune from prosecution from things he did that he wasn't convicted for by Congress.
That decision - that a president can be prosecuted who avoided conviction in an impeachment trial - that is what kept the Jan 06 case open.
The Supreme Court then sent it back down to the lower courts and Judge Chutkan got Jack Smith to set out his case with all the evidence to review in a pretrial decision to decide what could be used as evidenced in the trial. And he found masses of admissible evidence. It was clear that Chutkan was going to accept much of it though we don't know how much.
But based on the guidance of the Supreme Court and what Jack Smith had - which has now been published in redacted form - then she had plenty of grounds to convict him.
Jack Smith asked Tanya Chutkan to dismiss the case withotu prejudice and Trump's defense agreed.
This means that though it is suspended until the end of Trump's term, that it can in principle be resumed by the next president if he or she wants to do so.
Probably wouldn't. But if Trump does anything this term that is also criminal and that the isn't immune for, then it could be combined with the Jan 06 case once he is impeached and convicted or after the end of his term.
I did a long blog post about this very much misunderstood decision here:
Indeed - though not discussed by the Supreme Court - he can also likely be brought to a criminal trial while still president if what he did is sufficiently illegal.
It IS possible and permitted for a presidential candidate to TALK about locking people up. This confuses people. The reason is that the US has very strong free speech laws and people are free to say things that are illegal to do so long as they are not actually directly encouraging people to do those illegal things.
Even a presidential candidate can talk about doing illegal things like assassinating rivals or locking them up. But if elected, he can't actually DO them.
A sitting president can be tried in a court - example of Ulysses S. Grant fined for speeding in a buggy
A president CAN be tried in a court. Trump shows that an ex-president can be tried in a criminal court. The same principle is true of a sitting president too, though most likely a president would be impeached first before he or she can be tried in a court.
The only precedent there is Ulysses S. Grant who was fined for driving too fast in a horse and buggy (a very light weight horse-drawn carriage for one or two people)
Legal experts say that in extraordinary circumstances that have never happened in history it is possible for a similar process to end in a judicial trial rather than an impeachment. Actually there is one president who has been cautioned and fined, which provides a precedent. That is Ulysses S. Grant who got a police caution for speeding on a horse and buggy and was asked to pay $20 collateral. Also he didn't contest it which proves a president can be arrested and fined in principle. He didn’t have to pay the fine in the end.
This was after a mother and child were run over and badly injured by speeding carriages (not the president’s). Grant was keen on spirited horses and would sometimes let them race down the street with his carriage.
After the accident, the police set a watch for speeding carriages. The Grant raced past the policeman on watch once, and got a warning. The second time he said he didn’t know he was going so fast.
He was ordered to pay $20 as collateral. When the case was held then the Judge ordered heavy fines on several of the drivers. But the president was not fined and didn’t turn up in court. So he never actually appeared in court but was arrested and didn’t contest the policeman’s right to arrest him.
Story of President Ulysses S. Grant's 1872 arrest as reported in Washington Evening Star in 1908. (Star archives)
William H. West - a policeman, is then reported as saying:
“I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.”
He was ordered to pay $20 as collateral. When the case was held then the Judge ordered heavy fines on several of the drivers. But the president was not fined and didn’t turn up in court. So he never actually appeared in court but was arrested and didn’t contest the policeman’s right to arrest him.
It depends on the offence. Some would be better considered by Congress first. On the other hand some would need the full resources of the federal criminal system.
The example some legal experts gave was if a president was involved in a complex financial swindle which might be better suited to the federal criminal system
Trump’s executive order did not give him the power to interpret the law - nothing the executive does can ever have that effect
This is a bizarre sentence in one of Trump’s recent executive orders:
The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.
https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-accountability-for-all-agencies/
A president can't interpret laws, only the judiciary can do that.
If that gets to the Supreme Court then it's an easy decision. The controversial clause is simply mistaken.
That's the job of the judiciary. All the executive branch can do is to take care they are faithfully executed.
So it's unconstitutional. Expect court challenges. This is from The Jurist - law students explaining what's going on to the public:
QUOTE STARTS
The Trump administration stated the purpose of the order was to “ensur[e] that all federal agencies are accountable to the American people, as required by the Constitution.” According to the administration, Article II of the US Constitution vests this power in the president. They pointed to Article II, Clause 1, which states, “executive power shall be vested in a President of the United States of America,” to support this interpretation.
However, Article II does not expressly state that the president or any other person in the executive branch has the power to interpret laws. The article states that the president is required to “take care that the laws be faithfully executed.”
This is what the executive order says in context:
QUOTE STARTS
Sec. 7. Rules of Conduct Guiding Federal Employees’ Interpretation of the Law. The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-accountability-for-all-agencies/
Most stories are not focusing on this clause.
The executive order is about control over independent regulatory agencies such as
QUOTE the Consumer Product Safety Commission, which issues recalls and safety warnings; the Securities and Exchange Commission, which oversees markets; and the Federal Deposit Insurance Corporation, which insures bank deposits.
It is about rule making, which a president can do, not about interpretation of the law, which he can’t do.
Congress delegates many powers to the president. He in turn delegates many of them to agencies, often required to do so by Congress. Those agencies then exercise those powers partly by rule making.
Rules are different from laws. They are limited to the powers Congress delegates to the executive. Also Congress can often withdraw those powers or limit them if it decides that the president has been given too much independent authority.
QUOTE STARTS
Trump's order specifically exempts the Federal Reserve's Board of Governors and Open Market Committee.
...
The order calls for the affected agencies to submit any new regulations to the White House, set up White House Liaison offices, and "regularly consult with and coordinate policies and priorities" with the White House. In claiming this new power over agencies, the order also gives the president and attorney general the sole abilities to interpret laws for the executive branch. The order stands as yet another example of Trump's pushes to aggressively expand executive power.
...
The White House has had the power to review the regulations of government agencies for more than 30 years, since President Clinton signed an executive order calling for regulatory review. However, the policy has long exempted independent regulatory agencies.
...
The practical results of this executive order could be far-reaching, said UC-Berkeley's Farber.
"One result will be to give the president much more control over the financial sector, especially via the SEC," Farber said, adding that via the NLRB and FTC, Trump would also have more control over labor and trade, respectively. The ultimate result, he said could be regulatory whiplash.
"The Commission system has given these areas of the law some degree of stability, so the rules don't completely flip after every election," Farber said. "That would change under Trump's order."
https://www.npr.org/2025/02/19/nx-s1-5302481/trump-independent-agencies
So - if the Supreme Court does okay this then it will mean that rules set by previously independent agencies will be under tigher control and will flip back and forth from one president to the next.
Trump can’t suspend the US Constitution or ignore rights and can’t become a dictator - he can’t copy Victor Orban in Hungary or president Soon in South Korea as the US constitution doesn’t have those loopholes
Hungary has a very weak constitution. It can be edited by a 2/3 majority in parliament. It also has an election system that leads to a higher level of representation for the largest party, intentionally so to try to make minority governments less likely. That meant that the leading party didn't need to get 2/3 support of the public to have enough seats to edit the US constitution.
Victor Orban's party then edited the Hungarian Constitution to greatly reduce the power of the judiciary. Once they had done that they could then do all sorts of formerly impossible and illegal things.
The US Constitution doesn't have this loophole. Only the States can edit the Constitution and they can also stop any edit so long as at least one chamber in each of 13 states is opposed. There are 20 states with at least one chamber Democrat.
For another example. the South Korean constitution lets the president declare martial law. When he does that he is permitted to close down their parliament and has complete control over the media and as various other emergency powers.
The US Constitution doesn't have this loophole either. There is no provision for the president to control the media or shut down Congress.
For more details:
All a president can do is suspend the right for an insurrectionist to see a lawyer in detention - for the duration of the insurrection
The only thing that the president can do is to suspend the right for an insurrection in detention to see a lawyer - and only for the duration of an insurrection.
Also he only has this power because Congress granted it to him in a law. Congress can take back this power. And Congress can't grant any other powers either to the president or anyone else the only right they can remove is the right to see a lawyer in detention. They can't remove the right to free speech, or to freely assemble, or the protection against unreasonable searches or protection of any threats to life and liberty without due process of law.
A US president can't declare martial law. Individual states can but they remain subject to civilian Federal law so their powers under martial law decorations are very limited and recent Supreme Court cases have limited their power further.
Also civilian law always applies in the USA for as long as the civilian courts are still operating.
I go into details of all this here:
Trump can’t ignore the law - “He who saves his Country does not violate any Law." is NOT what the Supreme Court said - an alleged saying of emperor Napoleon - who ended up in prison in Elba and then in St Helena for life
Trump isn't brilliant at history - not a great choice of quote from Emperor Napoleon.
TEXT ON GRAPHIC:
Trump has little grasp of history.
wouldn’t want to emulate Napleon
ended up exiled to Eblba and then to St Helena for the rest of his life.
Napoleon MIGHT have said “He who saves his Country does not violate any Law."
It doesn’t make sense though.
Whether he violated laws or not, he ended up in prison for life.
It’s a bit like his bizarre improv about airports in the American war of independence. While still president on 4th July 2019, when his teleprompter conked out in rain, while talking about the American war of independence from Britain in the late eighteenth century, Trump said
"Our army manned the air, it rammed the ramparts, it took over the airports, it did everything it had to do."
Text on graphic: Trump is known for his bizarre impromptu ad libs
Donald Trump ad-libbing:”[in 1775] Our army manned the air, it rammed the ramparts, it took over the airports, it did everything it had to do.”
Background image combines:
. File:The Battle of Lexington.jpg - Wikimedia Commons
. File:Spitfire - Season Premiere Airshow 2018 (cropped).jpg - Wikimedia Commons
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This is just one of numerous ad lib gaffes.
He isn’t the only one to do bizarre ad libs. Politicians have to talk so many hours a day it’s not surprising they sometimes say bizarre things. Boris Johnson is famous for his ad libs about Peppa Pig World ad lib :).
I expect he was trying to compensate for when he said on Fox and Friends that "we don't need the votes". Here is what he said to Fox and Friends:
TRANSCRIPT We have lawyers at every poll booth. In fact my instruction. We don't need the votes. I am in Florida now and we drove to another house and every house has a Trump Vance sign on it, every single house. There is not a house that we passed that doesn't. We have the votes. What we have to do.
... It's amazing the spirit. And I say this, we have two elections. The first election we did great. The second election we did much better than the first election. But this election has more spirit than I've ever seen ever before. That's because they've seen how bad these people are at government ...
But Trump is like that almost all the time.
The president doesn't get to say what the law is, the Supreme Court does. TL:DR. If Trump does something criminal, e.g. orders a military or paramilitary to fire on civilians the people he ordered CAN be brought to trial and convicted. Trump himself can be impeached and convicted. If Trump is not convicted in an impeachment by Congress he can still be brought to the courts.
The Supreme Court decision said Presidential immunity is only presumed for official acts, none at all for unofficial acts and even though all agree he has absolute immunity for pardon, he is not immune if he uses his pardon power illegally. For instance he is no longer immune if he exchanges pardons for a bribe.
E.g. suppose a billionaire offered Trump $10 billion dollars to free him from jail. Presidential immunity wouldn't protect him if he accepted the bribe.
The Supreme Court discussed that example (not with any specific figure for the amount of the bribe). It was for lower courts to decide, and not clear exactly how the case would proceed since the pardons themselves couldn't be used as evidence - but they all agreed bribes for pardon can be prosecuted.
The decision is hugely misunderstood in the press. The Jan 06 case was still proceeding on election day. Trump would certainly have been brought to the courts if he had lost the election and likely been imprisoned.
When he won the election it no longer made sense to continue a court case for an insurrection. However the federal prosecutor Jack Smith asked Judge Tanya Chutkan to close the case "without prejudice". This means she didn't clear Trump of the charge of inciting an insurrection and the case can be resumed after his second term if the next president thinks he should be prosecuted. In practice that's only likely if he does more of the same this time around but if he did, the previous Jan 06 case could be added to whatever he does this time.
The Jan 06 immunity decision would NOT protect him if, say, he ordered the military or a paramilitary to fire at civilians.
That's by Trump's own team who argued with the Supreme Court that Trump would be impeached and convicted if he did something like that.
His own lawyers gave this example of him ordering a seal team to execute someone. Trump's own defence argued that he would be convicted if this happened, and they argued that since he wasn't convicted of Jan 06 that he should be immune for it.
The court disagreed. The Supreme Court in their deliberations said that even though he'd likely be impeached and convicted, he is not immune if Congress fails to impeach him. For example he might conduct a crime on the last day of his term. It makes no sense to say he's immune from prosecution just because he wasn't impeached. But generally - they all agreed that he is not immune from prosecution from things he did that he wasn't convicted for by Congress.
That decision - that a president can be prosecuted who avoided conviction in an impeachment trial - that is what kept the Jan 06 case open.
Both the prosecution and the defence and all the Supreme Court justices were in agreement that Trump would be impeached and convicted if he ordered an assassination. They were talking about assassinating a political rival if I remember right But that would include ordering soldiers or paramilitary to shoot at civilian protestors, it's much the same.
Trump's lawyers were surely correct. We see that the moderates in his own party are already uncomfortable with him not complying quickly with court orders. They would not stand for him doing something as illegal as this
Sotomeyer was hugely misunderstood. She didn't say that the court's decision would let Trump assassinate a rival. It was a more technical point.
The Supreme Court can't call witnesses, and can't hear evidence. Only lower courts can do that.
The majority said that any specific decisions should be left to the lower courts that have the power to call witnesses and hear evidence. They agreed that they expect the lower courts would decide that assassinating a rival would count as something he is not immune for. But they felt it was overstepping the division in duties between the Supreme Court and the lower courts to rule in advance for the lower courts.
Sotomeyer agreed on that basic point but she said they could use hypothetical examples such as a president ordering a seal team to assassinate rivals to give clear guidance to the lower courts.
The majority decision was that the president hadn't given such an order so it was a hypothetical about a case that hadn't happened and they shouldn't give any specific examples of hypothetical cases like that but leave that all to the lower courts. But it was clear from the discussions that all agreed that if the president did order an assassination that this is not part of the official duties of a president and he doesn't have even presumptive immunity.
So it's about protocol. That if a president ordered assassination of a rival, the lower courts would need to rule on that and the Supreme Court would only rule on it if the president appealed to the district and then to the supreme courts.
The Supreme Court then sent it back down to the lower courts and Judge Chutkan got Jack Smith to set out his case with all the evidence to review in a pretrial decision to decide what could be used as evidenced in the trial. And he found masses of admissible evidence. It was clear that Chutkan was going to accept much of it though we don't know how much.
But based on the guidance of the Supreme Court and what Jack Smith had - which has now been published in redacted form - then she had plenty of grounds to convict him.
Jack Smith asked Tanya Chutkan to dismiss the case withotu prejudice and Trump's defense agreed.
This means though it is suspended until the end of Trump's term, it can in principle be resumed by the next president if he or she wants to.
Probably wouldn't. But if Trump does anything similar this term, it could be combined with the Jan 06 case once he is impeached and convicted or after the end of his term.
For details see my:
Supreme Court justices all agree a president is NOT immune for crimes committed as president - Sotomeyer did NOT really say a president can assassinate rivals - details for lower courts to unfold soon
The Supreme Court decision doesn't mean what the click bait headlines say. Sotomeyer’s dissenting opinion was part of a slippery slope argument taken out of context and very much misunderstood.
Contents
Trump’s actions can lose him the House if he loses as many seats as he did in 2017-8
Judiciary are currently keeping Trump in check - not being intimidated by him
Trump can’t order military or paramilitary to shoot at civilians
Trump can’t suspend the US Constitution or ignore rights and can’t become a dictator - he can’t copy Victor Orban in Hungary or president Soon in South Korea as the US constitution doesn’t have those loopholes
All a president can do is suspend the right for an insurrectionist to see a lawyer in detention - for the duration of the insurrection
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(I've realised I posted this question to the wrong substack) I do want to ask since it is part of his recent executive order to bring down independant agencies (including the FEC). How much control would that give him over federal elections ? If his executive order passes, would he be able to control or rig elections ? What control would he have over them ?
Thank you this. It provides a lot of clarity. I am wondering however how he has managed to fire so many people if he doesn’t actually have this power. One would hope these employees would fight back and take this matter to the courts.