Are We Headed for a Constitutional Crisis?

Susan Estrich on Feb 13, 2025

Maybe.

That's the best constitutional scholars can say right now.

But I'm putting my money on the federal courts.

So far, it is the federal courts that have stood in the way of our presidents' (that's Donald Trump and Elon Musk, who's kidding whom) efforts to strip Congress of its power over appropriations and rewrite the Constitution. Dozens of lawsuits have been filed, and most of them -- to date -- have succeeded in stopping the worst of the abuses. The president's efforts to use executive orders to accomplish what can only be done by legislation, or constitutional amendment, have been blocked at least temporarily by injunctions issued by judges who were appointed by both Republican and Democratic presidents.

So far, the administration's response has been to say that it will appeal those orders to the courts of appeals, which is fine, because that's the way, under the rule of law, an administration is supposed to deal with district court decisions with which it disagrees. And so far, the courts of appeals have been unwilling to step in prematurely and stay those injunctions.

Of course, the administration has made clear that it will take these cases all the way to the Supreme Court -- the Supreme Court that Trump remade in his image, the Supreme Court that overruled Roe v. Wade and gave the president almost blanket immunity from criminal prosecution.

But if the Trumpers are expecting the Supreme Court to slap down the federal courts, it may be expecting too much. For one thing, the Supreme Court is just not set up to take all these cases. So far, some 45 cases have been brought in the first three weeks of the Trump would-be monarchy. It's fair to say that almost everything he does, other than his takeover of the Kennedy Center for the Performing Arts, has generated a lawsuit. Lawyers are standing by; he moves, we sue. That is not going to change.

Nor is it a certainty that Chief Justice John Roberts is ready to sacrifice the Supreme Court's legitimacy on the Trump/Musk alter. Roberts went along on Roe v. Wade, and he went along on presidential immunity. But he is, fundamentally, an institutional conservative, and there is no reason to think he will be willing to abandon the Supreme Court's historic role of standing by the lower federal courts and enforcing the rule of law.

At a press conference on Tuesday, the president said that if the trend continues, he will have to take a "look" at these federal judges. He can look all he wants. What he'll find is that federal judges are appointed for life and cannot be removed by executive order. Does Trump really think he can get his toadies in Congress to impeach federal judges who do not bow to his edicts? It would be unprecedented, to say the least.

What is more worrisome is the prospect that, rather than appealing the decisions of the courts that he disagrees with, Trump and Musk will try to simply ignore them, which is to say, defy the rule of law. That's what JD Vance has been saying for years: Let the Supreme Court try to enforce decisions reining in presidential power. That was the decision facing the Eisenhower administration back in the 1950s, when the Supreme Court's decision in Brown v. Board of Education faced massive resistance in the South. The administration concluded, rightly, that it had no choice but to enforce the Court's ruling, including by sending federal troops to accompany young Black children to school.

If Trump thinks he is really above the law, that people really elected him to be king, then he will have to stand up not only to the federal courts but to the Democrats in Congress who will move to impeach him. To face impeachment to save Elon Musk and his boychicks bent on bringing not only the bureaucracy but Congress to its knees is an invitation to elect a Democratic House and Senate. Trump may believe he was elected in a landslide, but he wasn't. He does not have a mandate to be king, and if he pushes too hard, it will not just be federal district judges who will push back.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.