The Queen of Hearts Syndrome and Our 'Constitutional Crisis'

Jerrold Nadler (D-N.Y.) referred to the president's issuing of a claim of executive privilege to abrogate the House of Representatives' subpoena of the full, unredacted Mueller Report as a "constitutional crisis."  Nadler stated, "We are in one because the president is disobeying the law, is refusing all information to Congress."  This neat little two-word designation has been picked up by the talking heads of the MSM and is being used to underline and italicize the need for impeachment.  Impeachment of the president is considered important by Nadler and his band of deranged brothers and sisters like Adam Schiff, Steve Cohen, Rashida Tlaib, and Maxine Waters.  The blue wave of impeachers want to impeach not only President Donald Trump, but William Barr, Brett Kavanaugh, and Betsy DeVos and, in fact, would probably like to impeach Trump's whole Cabinet.  I call this untidy tidal wave of rage the off-with-their-heads Queen of Hearts syndrome. 

Former FBI director James Comey, one of the key actors in this so-called crisis, gave his typically vapid assessment by noting, "I actually don't think the country is in a constitutional crisis, [but] we're at a time where our constitutional design, the genius of our founders is going to be tested, and I think it's up for it."  Bob Woodward, the Washington Post journalist of Watergate fame, and Sen. Mark Warner (D-Va.) said they prefer the term "constitutional confrontation" to "constitutional crisis."

But the term "constitutional crisis" has been used in referring to the Trump administration almost from Inauguration Day.  On that date in 2017, The Atlantic's David Frum called the new president a "constitutional crisis on two legs." Then, a few days later, the president issued an executive order banning citizens of several Muslim-majority countries from entering the U.S.  After he took that step, Marielena Hincapie, the executive director of the National Immigration Law Center, told the Associated Press, "We're really in a crisis mode, a constitutional-crisis mode in our country, and we're going to need everyone[.]"

While most of us would abhor being verbally assaulted and maligned day after day, the president with his combination of vanity and tough-mindedness actually seems to enjoy the attention that the rage-filled politicians and news commentators give him.  Those who despise him have made him the perennial subject of their newscasts on MSNBC and CNN in order to bestow their verbal abuse upon him.  Snickering at Trump; mocking him; condemning him; maligning him; and pouring verbal vitriol into his every comment, movement, activity, and tweet seems to give many well paid commentators incredible satisfaction.  Frum's labeling of Trump as a "constitutional crisis on two legs" seems increasingly apt with every passing month.

In an incredibly focused and clear article for the University of Pennsylvania Law Review, the authors, Jack M. Balkin and Sanford Levinson, state, "Given that conflict between political actors is the norm and not the exception in American constitutional life, the idea of constitutional  crisis must be far narrower. We therefore reject the notion that any situation in which institutions or actors are at loggerheads constitutes a crisis.  Rather, we must reserve the term for a more special class of situations."  These same authors raise the legitimate question as to whether or not the term "constitutional crisis" "has become no more than a marker of emotional intensity, the equivalent of pounding the table and marking one's degree of upset about some state of affairs in the world."

Assertions of power in the absence of perceived emergencies may be the most likely to generate perceptions of "crisis."  The authors describe three types of constitutional crises. The first one is when persons in power suspend certain features of the Constitution in order to meet certain perceived exigencies of the moment to help the State.  Thomas Jefferson's making the Louisiana Purchase is given as an example.  There were good reasons to believe that the Constitution did not authorize him to make the purchase, but for the good of the country, he went ahead with the purchase since a delay in authorizing the purchase might have resulted in withdrawal of the offer by Napoleon.  Clearly, Trump's assertion of executive privilege regarding the forwarding of the unredacted Mueller Report to the House Judiciary Committee is not in this category.  No powers of the Constitution have been suspended.  Rather, the House subpoena allowed by the Constitution has been overridden in a legitimate way by the executive privilege designation.

Type Two crises "involve failures of constitutional structures that the relevant actors do not dispute or attempt to escape."  President James Buchanan sat by and allowed the Southern states one by one to secede, which he believed was illegal but at the same time did not believe that the Constitution allowed him to intervene and stop them.  He said, "Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force."  President Abraham Lincoln did not believe that the Constitution limited the president's hand in the matter of secession, and thus we were led into a Type Three crisis.

The Type Three crisis is where each parties believes that it is acting constitutionally and that the other party is acting in bad faith.  The Type Three crises have largely been between the Northern States and the Southern States having to do with the stalemate in the national presidential election of 1800, the "tariff of abominations" and South Carolina's threat to secede in 1832, the Civil War, Reconstruction, and the integration of Central High School in Little Rock.  Conflicts between the Legislative Branch and the Executive Branch do not typically rise to the level of being a Type Three crisis because the possibility of the use of force typically is not involved.

However, the injection of the use of force into the present dispute has been advocated by the N.Y. Times, which, in an op-ed by Michelle Goldberg on May 9, 2019, advocated for use of police force, presumably to arrest members of the Trump administration for blocking the House subpoena.  Thus, she has come out for a hellish and unnecessary scenario that would be unprecedented — a hysterical and disproportionate response to the present stresses between the two branches of government.  In so doing, we would inappropriately be moving from calling the dispute between Nadler's committee and the president a "crisis," suggesting simply the "emotional intensity" of the two sides, to being a full-blown and unjustifiable crisis.  It would seem that Michelle G. is the designated voice of the Queen of Hearts in this offensive agitation.

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