Sue Lani Madsen: Princeton professor explains why Trump is a ‘useful vehicle to think about Constitutional crises’

When Keith Whittington studied the impeachment process in graduate school, he figured no one would be interested in such a dusty old topic. Then President Bill Clinton was impeached.

Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and a distinguished author on constitutional politics and the presidency. He spoke Thursday evening at Washington State University’s Foley Institute in Pullman on the topic of his upcoming book, “Constitutional Crises – Real and Imagined.”

Pullman’s Bryan Hall venue was over capacity. More than 80 students and faculty jammed into the Foley Center meeting room, with more in an overflow classroom next door, to hear his answer to the question of the evening. What is a crisis and are we in one, given the call for impeachment proceedings and President Trump’s unconventional administration?

Whittington said we’re too quick to label things crises when actions seem unfamiliar and rare: “Politics out of the ordinary makes us nervous, and it shouldn’t.” The impeachment process is merely a tool available when the executive and legislative branches clash. Rarity in use does not mean there is a crisis.

The term constitutional crisis has no legal meaning, Whittington said. Usually, it’s invoked when there is concern the constitutional system is failing. He described two ways the Constitution can fail, either as a crisis of operation or a crisis of fidelity.

At its simplest, the Constitution is a guide to organize political differences in a meaningful way so we can make decisions. The challenge is making day-to-day politics comport with the requirements of the written document. If we follow the Constitution and reach an impasse in decision-making, it fails operationally, but it may not be a crisis.

In a crisis of operation, following the constitutional rules leads to impasse or the rules aren’t helpful. Whittington pointed to the 19th-century secession crisis, which started in the 1840s when western Rhode Islanders attempted to secede from their coastal elites.

Rhode Island ended up with competing state governments, both claiming legitimate control of western Rhode Island. The Constitution was silent on the question of whether it was possible to secede, with no mechanism to resolve the dispute. Rhode Island found a peaceful solution.

In 1861, mass Southern secessions led to the Civil War. That was a crisis.

The near-impasse over Senate confirmation of presidential appointments is approaching crisis, but it’s not a new problem, according to Whittington. Historically, the Senate adopted a deferential attitude to the president’s nominations, a norm now undermined by partisan polarization approaching pre-Civil War levels. We have Democratic Senator Harry Reid to thank for the simple majority work-around. Crisis averted.

A crisis of fidelity is the second failure mechanism. Whittington said the U.S. has avoided this by “creatively interpreting the Constitution to accommodate radical movements that might be tempted to throw out the Constitution.”

He pointed to Franklin D. Roosevelt’s administration provoking many potential crises of fidelity. FDR’s attorney general recommended arresting Supreme Court justices if they ruled against the suspension of repaying bond holders in gold as required by contract. The court blinked and found a cleverly worded way around the constitutional requirements, similar to the carefully worded finding on the constitutionality of Obamacare. FDR never delivered his fireside chat sidelining the Supreme Court. Crisis avoided.

Whittington said there are no clear constitutional rules addressing the executive branch ignoring subpoenas issued by the legislative branch. What has been worked out informally in the past may be brought to a head under the current deep polarization. It’s an operational question, but has low political stakes. It’s not a crisis.

While it might be easy to imagine an unconventional Trump creating a crisis of fidelity, Whittington sees it as unlikely.

What the Trump administration has focused our attention on is the importance of norms as an informal limit on discretionary authority and an aid to smoothing the rough edges of a clunky process. Coming from a nonpolitical background as a real estate developer, Trump is willing to push boundaries.

Whittington said the greater worry is any president who believes his or her priorities are so important they override the Constitution.

Trump is unique in some ways, an extension of older trends in others, and a “useful vehicle to think about constitutional crises,” Whittington said.

He’s concerned about the risks of crisis rhetoric undermining confidence in the robustness of the Constitution. There have been moments of great struggle in the past. We didn’t use to call them crises.