The First Constitutional Crisis of 2025
Hoping to add a little clarity to the situation
People frequently tell me that I’m good at bringing clarity to fraught questions. These days, I find myself wanting to write about the state of the United States. I write in the hopes that I can bring some of that clarity, while admitting that’s likely a vain hope because most of today’s arguments have degraded to tweet length snaps and taunts. I prefer to construct serious arguments, and I’m hopeful that this serious argument will help people understand why so many of us see a crisis and what we might do about it.
This is not a political post in the sense of advocating for one party or another. It’s a post about the state of our nation, which is in crisis. We have hundreds of years of history in which a few principles have been used to define how America works. That Constitutional bedrock includes separation of powers, the power of the purse being set in Congress, and the very Oath of Office. I’ve been posting the Declaration of Independence annually since 2005, generally without commentary because it’s worth reading and re-reading. In fact, let me contextualize the rest of what I want to say with a quote:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The system of checks and balances is one of the things which separates America’s system from the parliamentary democracies. In those, a party runs on a platform, the winning party forms a government and then has a mandate to do the things in its platform, and with limited exceptions, gets to do it because of its parliamentary majority. More, ministers hold dual roles as parliamentarians and members of the executive. So they both vote for and execute policy.
In contrast, the design of the American system is that Congress sets policy, and the Executive branch executes it. That separation of powers interlocks with the idea of checks and balances. The President and principal officers of the country are bound by oath to faithfully execute the law.
I quote the Declaration because our Constitutional system was set up to limit “trains of abuses or usurpations.”
But today, these checks and balances are not happening. The President has decided that he doesn’t like USAid, NOAA, and a host of other programs that have been authorized and funded by Congress for decades. He’s made a decision to cancel all their contracts and staff without Congressional action. He’s fired inspectors general flouting the Congressionally mandated notice periods. (There are trackers showing the cases, and this site claims he’s lost 93% of the cases so far.)
There are other changes, like eliminating the Cyber Safety Review Board and the US Digital Service, that are within the purview of the executive. Those were set up administratively, and can be ended in the same way.
I hope to convince you that whatever you think of his changes, a great many of them are ... simply not how our system was intended to work. It is especially not how our system was intended to work when the President’s party controls both houses of Congress.
Our system has a great deal of dysfunction. You might argue that previous administrations did the same (for example, with student debt relief), and the change is at most a change in quantity. I don’t think that’s the case. Further, you can make a strong argument that our system needs to be shaken up. And if that’s the case, well, please make the argument for how it should be shaken up. Submit your plan to a candid world and then have Congress vote on it.
The alternative is that every four years, we’ll get a tsunami of executive orders redesigning government. That’s not how our system was designed, and there’s every reason to expect it will be chaotic, distracting, and damaging to Americans and our peace and prosperity.
This was not previously controversial. In fact, Justices Gorsuch, Thomas and Alito declared that “major questions” of “vast economic and political significance” require clear statutory authorization. (There are, ahem, major questions about what that means, and I’m skeptical that the Supreme Court should be inventing such doctrines. I recall when someone said that Judges are like umpires. Umpires don’t make the rules, they apply them.) But that aside, there’s little serious argument that in the American system, the powers of the executive are as expansive as the new administration is claiming.
Principled Republicans, like Alan Raul, see this clearly. And herein lies the way out of the crisis: we need to focus on the principles that have served us, including checks and balances. We need to accept them even when we don’t like the results.
If, foolishly, Congress decides to cede soft power to China but gutting US Aid, so be it. If, foolishly, Congress decides to kneecap the system of research that has made American science and technology the envy of the world since the Second World War by gutting the many institutions that fund science, so be it. (And funding science needs to include some way of paying for things like buildings, interns, administrator, and the other things which allow scientists to ‘do science.’ Maybe that’s different than the current system. I would applaud simpler federal grant processes, and perhaps we should transition to a system where private philanthropy pays for some of the overhead. But that’s not what Congress, in its wisdom, has voted for.)
We need to reject people going around the rules, even when we happen to like the results. That’s what principles are about. I think the “BOI system” was a bad idea. It was clearly an unconstitutional search without suspicion, that leads to risks for victims of stalking, domestic violence, and others concerned about physical safety, and they were not worth the cost. But the American way to deal with those problems has been for Congress to repeal the previous laws (or for courts to strike them down). It’s not for the executive branch to say “Nah, we don’t like that law.” So while I mostly appreciate that the Treasury Department has announced it won’t enforce the “BOI” rules, it’s outside of their powers. A bill to repeal the BOI has been introduced, it should be passed.
America will have to choose one of three approaches to this crisis: We can fix the system we have, we can reform it, or we can pretend that the system doesn’t exist, and that whomever happens to be in power can do what they will with the power of the United States.
[updated to refer to Treasury, not Justice, not enforcing the BOI law.]