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Justices of the U.S. Supreme Court

Oh, lawd, the drama queens are back. As early as 2017, lots of ill informed observers were aflutter over an alleged “constitutional crisis.”

A “crisis” is an emergency in which the way forward is not clear, but some action, likely swift, seems necessary. A “constitutional crisis” in the United States, presumably, is such an emergency involving our Constitution, or one in which our Constitution provides no clear guidance.

Since the drama queens are often not very precise in explaining what they mean by their overblown use of the term, it can be hard to evaluate. Writing at Vox, drama queen Ian Millhiser explains that, in his opinion, there is no obvious way to force the so called president to comply with the legally valid subpoenas from the House.

He is right that the so called president has zero legal grounds to resist any of these subpoenas, his lawyer’s absurd claims to the contrary having no real bearing on the question. There are reasonable times to claim executive privilege, but this is not one of them.

Millhiser goes on to state that, at the moment, there is no good reason to think that enough Republicans in the Senate will abandon Trump to make him change his tune. It is a Catch 22 for Trump. Defiance looks like the best bet because, as he implicitly admits by refusing to release documents or allow his toadies to testify, any honest examination of the relevant evidence would certainly reveal criminal activity on his part. So Trump will continue to stonewall.

What Millhiser entirely fails to address, however, is that none of the cases of Trump v. the House of Representatives has yet been before the Supreme Court. The Court has clear precedents that should lead it easily to find that Trump must comply with House subpoenas. Chief Justice John Roberts has expressed his concern for the perception that the Court makes its decisions on the basis of partisan preference, and Justice Sotomayor has recently stated a strong dissent from the Court being over deferential to the Trump administration. Holding that Trump may defy House subpoenas would be a hugely partisan decision, with Republican Party loyalty as the only viable explanation.

Either of two possible events in the near future could create a real constitutional crisis. If the Court takes Trump’s side and cooks up some new rationale to let him defy House subpoenas, or if the Court orders Trump to comply with the subpoenas, but he still refuses, which is quite likely, that would create the constitutional crisis the drama queens so desire.

Trump commits obstruction of justice daily by refusing to comply with House subpoenas. All informed observers agree that the concept of separation of powers is built into the U.S. Constitution with the purpose of allowing each branch to prevent any other branch from becoming too powerful. Concerns about excess of power accumulating in the executive branch have arisen since soon after Nixon left office. Trump badly exacerbates such concerns with how he conducts himself as so called president.

The Supreme Court has no valid basis for allowing Trump to continue to abuse the power of his office by defying the legitimate investigative powers of the House, at all, but especially under the rubric of an impeachment investigation. At a minimum, we need to find out if the institutionalist impulses of the notionally “conservative” justices, or enough of them, overcome their Party loyalty sufficiently to allow them to order Trump to comply.

Then, assuming Trump refuses to comply with a Supreme Court order, we will have to find out the same thing about Republican Senators. Maybe enough of them will see the threat to our Constitution and agree to vote to remove Trump. Trump defying the House of Representatives is bad. Trump defying the Supreme Court should set off alarm bells for even the most partisan of Republicans. Whether news of such a development would prompt Trump to resign as it did Nixon remains to be seen. It seems unlikely.

Regardless, we have one long step to take before declaring a “constitutional crisis.” Until we have a decision from the Supreme Court in any of the cases involving Trump’s defiance of House subpoenas, we have no “constitutional crisis.”

Claiming one now is just drama queen nonsense.

Written by

Uppity gay, Buddhist, author, historian.

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