President Trump’s aggressive actions since taking office have raised concerns among some legal experts and the president’s critics that he is blatantly disregarding the Constitution, with some arguing the country is on the verge of, if not already facing, a constitutional crisis.
Many scholars say Trump has overstepped his constitutional powers as he’s sought to upend federal policy via a tsunami of executive orders. Both chambers of the Republican-controlled Congress have fallen in line with Trump’s slash-and-burn approach, which has elevated worries about whether the Constitution’s system of checks and balances is working.
Trump has fired watchdogs in executive branch agencies and heads of independent groups established by Congress. He’s facing court fights for challenging constitutional protections including birthright citizenship for children of immigrants who are undocumented or have temporary status. And he’s appeared to circumvent some court decisions, such as one upholding the TikTok sale-or-ban law.
Vice President JD Vance this month appeared to endorse further expanding the executive branch’s power, saying he believed the courts were overreaching in blocking an array of Trump’s actions.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal,” Vance wrote on X. “Judges aren’t allowed to control the executive’s legitimate power.”
So what is a constitutional crisis anyway?
While legal experts don’t agree on a single definition for a constitutional crisis, they do believe one would feature certain fundamental characteristics.
A constitutional crisis takes place when one of the three branches of the federal government — the judiciary, the executive, and the legislative branch — exceeds its powers granted by the Constitution and encroaches on others. That typically takes place by defying court rulings or laws, with limited pushback from the other branches.
In short, a constitutional crisis arises when “you have a crisis that does not get resolved by the rule of law,” said Jed Shugerman, a Boston University law professor and presidential historian. He noted a crisis can also stem from disputes between the federal government and the states.
The United States has undergone — and survived — several constitutional crises.
In 1832, for instance, President Andrew Jackson defied a Supreme Court ruling that Georgia could not seize land belonging to Cherokee nation. Jackson ignored the ruling and ultimately forced thousands of Native Americans to move westward in what has become known as the “Trail of Tears.”
In another instance, Southern states refused to desegregate their public schools after the Supreme Court’s Brown v. Board of Education decision instructed them to do so. That prompted President Dwight Eisenhower to send federal troops to Little Rock, Ark., to enforce the law.
Scholars disagree on exactly at what point a government conflict becomes a constitutional crisis. Some believe it occurs when an executive disregards laws set by Congress, for example, while others think a president also needs to defy court rulings. A constitutional crisis doesn’t happen with the flip of a switch, they said. Instead, they exist on a spectrum and can come in stages, with the potential to get worse.
Are we in one now?
That depends entirely on who you ask.
Many experts who study constitutional law say yes we are — albeit, in the early stages of one. Nearly 1,000 law scholars signed onto a bipartisan letter Wednesday decrying Trump’s orders and declaring “we believe we are in a constitutional crisis.”
“We don’t need to have a fully developed answer to what a constitutional crisis is to know we are in one right now,” said Kate Shaw, University of Pennsylvania law professor, one of the letter’s signatories who spoke with the Globe.
Shaw pointed to Trump’s firing of government officials with legal protections from being dismissed at-will as one of several examples in which the president has flouted the law. She noted, however, that so far, Trump has not gone so far as to openly defy a court ruling.
“I don’t think we are beyond the point of no return — and I also don’t think it’s necessarily a binary," she said. “There is a spectrum, but I do think that wide-scale lawbreaking by one branch of government without really meaningful pushback, in particular from Congress, is the stuff of constitutional crises.“
Shugerman similarly likened the country’s current state to levels of military readiness, saying, “We just moved up from DEFCON 5 to DEFCON 4 because we have some mix of negligence, recklessness, or deliberation in not complying with lower court orders.” For instance, a judge admonished the Trump administration on Tuesday for not resuming foreign aid funding after ordering it to do so earlier this month.
Some, however, argue a constitutional crisis arises only after a president directly ignores another branch. Ilya Shapiro, director of constitutional studies at the Manhattan Institute, a center-right think tank, said while the Trump administration has maintained an “aggressive posture,” much of the hype around the question of a crisis has been overblown.
“There’s no cataclysmic scenario that’s going on right now,” Shapiro said. “The administration is trying to, with more competence than eight years ago, restructure government, reorient our political culture in ways that left-wing elites who control the commanding heights of many institutions don’t like.”
While there may have been “technical violations,” Shapiro acknowledged, Shapiro said he felt Trump’s executive orders were better lawyered than during his last term.
“At the end of the day, it shouldn’t be that shocking that the head of the executive branch wants to control the executive branch,” he said.
What has the White House said?
Trump officials have argued the president’s actions are within the scope of presidential power and claimed in court the laws they’ve challenged are illegal, not the Trump administration’s new orders.
Karoline Leavitt, the White House press secretary, said this month media outlets were “fear-mongering the American public into believing there is a constitutional crisis taking place.” Leavitt claimed a crisis was instead in the courts, where she said “liberal judges” were participating in “obstructionist efforts” to block Trump’s “basic executive authority.”
“We will comply with the law and the courts, but we will also continue to seek every legal remedy to ultimately overturn these radical injunctions and ensure President Trump’s policies can be enacted,” Leavitt said.
The White House has relied on the unitary executive theory, a constitutional law theory arguing the president has sole authority to oversee the executive branch without any limits imposed by Congress.
Robert Tsai, another Boston University law professor, said Trump is exercising “maybe the strongest form of the unitary executive theory” seen by any American president. One key lawsuit to watch in this area, he said, is Democratic attorneys general challenging Trump for allowing Elon Musk to slash funding and personnel from government agencies via the Department of Government Efficiency, or DOGE.
Where is Congress in all this?
Under the Constitution, the three branches of government are designed to check one another if one overreaches and infringes on the jurisdiction of others. In Shaw’s eyes, “The cleanest way out of a constitutional crisis is for Congress to assert itself as the Constitution expects it to.”
So far, Congress doesn’t seem interested in intervening. Congressional Republicans, who control the House and Senate, have defended Trump’s actions, even as the president has tried to take on powers that Congress has traditionally guarded jealously, such as setting federal funding levels and priorities.
“I’ve been asked so many times, ‘Aren’t you uncomfortable with this?’ No, I’m not,” House Speaker Mike Johnson, a Louisiana Republican, said of Trump’s spending cuts.
Senator John Curtis, a Utah Republican, defended Trump’s actions Sunday, telling CBS he believed “this is how we test the Constitution.”
Some Democrats, meanwhile, have cautioned against publicly declaring that Trump’s actions amount to a crisis just yet.
“Ask me in April,” Representative Jake Auchincloss, who represents Massachusetts’ Fourth District, told the Globe Monday, pointing to upcoming budget fights. “To me, what a constitutional crisis entails is if Congress cedes the power of the purse.”
Why does this matter?
Democrats warned throughout the 2024 presidential campaign that a second Trump administration would be a threat to democracy, pointing to his refusal to acknowledge the results of the 2020 election and his remarks he wouldn’t be a dictator “except for day 1.” Trump‘s early weeks in office have exacerbated those fears.
Bright Line Watch, a group of researchers that has tracked the state of American democracy, did a survey of both political experts and average Americans and found both groups felt the stability of American democracy had hit its lowest point since they began surveying in 2017.
Brendan Nyhan, a political scientist at Dartmouth College in New Hampshire and the group’s director, said expert ratings had “declined to a level below anything we saw during Trump’s first term,” meaning experts “perceive there to have been significant deterioration in American democracy already.”
He said the president defying the law has not helped: “A Constitution that’s not treated as a binding constraint is no longer a Constitution.”
Several scholars, including Nyhan, suggested Trump’s actions could have a chilling effect on the courts where, in order to maintain their credibility, judges “circumscribe what they do precisely because they fear their decision not being followed.”
“We’ve already seen the legislature fail to uphold its constitutional responsibility,” he added, “and if the courts do as well, we’re in even more trouble.”
Shelley Murphy of the Globe staff contributed to this report.
Anjali Huynh can be reached at anjali.huynh@globe.com.