Is the US government facing a constitutional crisis? | The Excerpt
On Sunday’s episode of The Excerpt podcast: It has been one month since President Donald Trump took the oath of office and was sworn in as the 47th president of the United States. In that time, he has issued more than 70 executive orders and has bypassed Congress on issues related to citizenship, the disbursement of appropriated funds, and the overall downsizing of the federal government. What happens when one of the three branches of government overreaches and seizes power and authority from another? Critics of the president are calling it a constitutional crisis. Is that true and what does a constitutional crisis really mean? Paste BN Justice Department Correspondent Bart Jansen joins us on The Excerpt to share his insights.
Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.
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Dana Taylor:
Hello and welcome to The Excerpt. I'm Dana Taylor. Today is Sunday, February 23rd, 2025. It's been just over one month since President Donald Trump took the oath of office and was sworn in as the 47th President of the United States. In that time, he's issued more than 70 executive orders in his bypass Congress on issues related to citizenship, the disbursement of appropriated funds, and the overall downsizing of the federal government. What happens when one of the three branches of government overreaches and seizes his power and authority from another? Critics of the president are calling it a constitutional crisis. Is it? If it were, what does that even mean? For more on that, I'm now joined by Paste BN Justice Department Correspondent Bart Jansen. It's good to have you on, Bart.
Bart Jansen:
Thanks for having me.
Dana Taylor:
Before we dive into a few of the recent moves made by this new Trump administration, let's talk about the Constitution, which is an evolving living document that governs our democracy, our system of government. What are some of the foundational premises here and what would constitute a constitutional crisis?
Bart Jansen:
Well, the Constitution set up three branches of government to perform as checks and balances against each other. The first branch is Congress. Lawmakers decide what laws to create, and they set the levels of spending and taxation. The second branch is the executive branch. That's the president and the executive agencies, cabinet offices that carry out and enforce the laws and also conduct foreign policy. The third branch is the judiciary. That's where judges resolve disputes, either over legislation, what did the lawmakers mean when they approved the bill, or how the legislation is enforced. Is the executive branch doing the right thing in carrying out those laws or enforcing them?
If there's a dispute between two of the branches, then that's what's typically characterized as a constitutional crisis. For example, if the Congress thought that the executive branch wasn't carrying out its laws in the right way, they might go to the judiciary to say, "What's the answer? How should things work?" Likewise, if the executive branch, if President Trump is carrying out laws in a certain way that lawmakers disagree with, then again, he could go to the courts and say, "Okay, who's right? I'm going to try to abolish this agency or get rid of this law. Can we do that?"
Dana Taylor:
Now, let's get into some of the details. First, the power of the purse. Some of Trump's early moves, like his hollowing out of USAID and other agencies, the Department of Education, the Department of Energy, et cetera, these have budgetary implications even if they're saving, not spending money. How is this problematic?
Bart Jansen:
Well, that's right. Congress was given the responsibility to set spending priorities. They always say they hold the power of the purse, and they spend an entire year debating how much the government should spend on different agencies and different priorities. Those are reached through, typically, bipartisan compromises through a lengthy debate. But one of President Trump's key aides, Russell Vought, the Director of the Office of Management and Budget, contends that Congress sets ceilings on spending, not floors. If Congress were to have improved a million dollars for a certain program, but the executive branch figures out a way to accomplish that goal for less than a million dollars, well, you'd think nobody wants to dispute the savings. They say, "Do a good job, carry it out for a little bit less." The dispute, currently with the Trump administration, is that he's dismantling entire agencies, firing thousands of workers that Congress has approved and funded. The question is, can he do those things? He contends, of course, that he can, because they're executive agencies, and so the question will be, as advocacy groups and the workers themselves challenge these decisions in court, what does the judiciary say?
Dana Taylor:
President Trump's executive order to end birthright citizenship challenges a right that was enshrined in the Constitution after the Civil War in 1868 through the 14th Amendment. Four federal judges have since blocked that order. What's the crux of President Trump's argument for ending birthright citizenship for certain children born in the United States, and does he even have the power to unilaterally issue orders that are in violation of the Constitution?
Bart Jansen:
Well, that's a contentious question. A lot of people thought that this policy was firm after, as you say, being a constitutional amendment ratified in 1868 and then upheld by a Supreme Court decision in 1898. It's been the law of the land for 150 years, and it was created in the wake of the Civil War basically to make citizens of the children of former slaves. What President Trump is arguing is that this is never the way the writers of that amendment intended, because basically, he's trying to prevent the children of immigrants, who are not in the country with legal authorization, from having children here who become citizens and then remain.
He signed an executive order saying that if a child has both parents who are undocumented immigrants, that that child doesn't get automatic citizenship. That would be a stark departure from what has been policy for 150 years, and so that executive order has been challenged and blocked in several federal courts. The ninth U.S. Circuit Court of Appeals has refused to overturn that lower court order. Trump has argued that he will take the case to the Supreme Court and that he expects to win at the Supreme Court, where six of the nine justices are conservative and he thinks will agree with him. We're waiting to see about his potential appeal to the Supreme Court and what the justices rule on that.
Dana Taylor:
In the case of USAID, Trump issued a directive on day one to freeze funding in response to [inaudible 00:06:59] by USAID officials and the court's rule that such funding be resumed on Tuesday, February 18th. Then, last week, the administration told the federal judge that it will not comply with the court's order. Has this ever happened before, and what happens next?
Bart Jansen:
This is one of the fundamental cases that will resolve who decides where spending should go, what priorities should be funded. Trump is in the midst of basically dismantling USAID, an organization that provides humanitarian and development aid to foreign countries. He says most of it is corrupt and a waste of money. He's talking about reducing a staff of more than 10,000 to a several hundred, and they've already taken the name off the front of the building. Advocacy groups and workers at the agency have tried to block his steps. Judges have taken initial rulings to at least temporarily halt the moves to dismantle the agency, and there's been a dispute then that foreign aid funding has continued to be frozen.
The advocacy groups asked last week for the judge to hold the government in contempt for not basically leaving status quo, having the money continue to flow, having the agency continue to operate. The judge did not go that far on Thursday in a ruling that said, well, the temporary restraining order remains in place, but this remains contentious. It's difficult to see how much of the agency is continuing to function, and so it remains hotly contested and we'll have to wait for future rulings to see whether the U.S. Agency for International Development survives.
Dana Taylor:
Or even if Congress doesn't object to what the President is doing, the Republicans currently hold both houses. Are both the President and Congress still bound by the Impoundment Control Act, and what's the purpose of that act?
Bart Jansen:
As I mentioned, the Constitution provides that Congress is the branch of government that sets spending priorities and taxing priorities and makes those decisions. These moves that Trump has made really challenge that ability to set priorities and determine the federal government's functions through spending priorities. Congress reinforced its authority in a 1974 law called the Impoundment Control Act, which said that if the president wanted to reduce spending that Congress had approved, that he could let them know about what he wanted to cut and see if they agreed. But the law said that if they did not agree with his, what's called a rescission, within 45 days, that the spending would continue in place. It's a way for him to basically make an argument that a specific program or specific sets of workers were no longer needed. Lawmakers could take a second look at it, but it kept the control over the spending in their hands.
In addition, there was a fight in the 1990s over what was called the line-item veto. This was the idea that a president could veto portions of legislation rather than entire bills to say just what he didn't like a specific agency, a specific provision, within that legislation. But the Supreme Court threw out that argument, saying, "There is no line-item veto," so one of the disputes in these court cases now is whether Trump can abolish specific agencies or specific programs in agencies given that he doesn't have a line item veto. Effectively, the courts will be resolving, as these cases make their way through the courts, whether he can target specific agencies and specific workers.
Dana Taylor:
Last week, the Department of Justice filed a motion to dismiss its corruption case against New York City Mayor Eric Adams. That motion must be signed off by a judge first, who held a hearing last week to consider the government's reasons for dropping it. Regardless of which way he rules, the situation has essentially become a standoff between federal prosecutors and the Justice Department. Some are speculating that this is a quid pro quo forgiveness from Trump if Adams enforces Trump's immigration policy. Is that legal? What does the Constitution have to say about this kind of conflict, if anything?
Bart Jansen:
Yeah. This is a very unusual case in that the Justice Department is basically saying, "Oh, we filed these corruption charges against the mayor of the largest city in the country," and then says, "Oh, never mind. We no longer want to pursue this case and we want to drop these charges." Technically, a judge has to sign off on dropping those charges because a grand jury has returned an indictment and those charges have been pending for months against New York City Mayor Eric Adams. But the Justice Department, of course, changed hands with the election of President Trump. Acting Deputy Attorney General Emil Bove, himself a former defense attorney for Trump before he returned to the presidency, told the prosecutors in New York City to dismiss the charges, not because of any problem with the evidence or the legal theory behind the case, but because of the timing of the case that Bove said seemed political and because it hindered the mayor from helping the administration enforce immigration laws.
Some critics of this deal have called it a quid pro quo, that Trump is dropping charges in order to get the mayor to do something that he wants to do. The Trump administration and Mayor Adams have both denied that there is a quid pro quo, although Adams is now assisting the Trump administration more in immigration enforcement. All of this lands the case before U.S. District Judge Dale Ho, who asked to hear arguments about whether the charges should be dropped. Judge Ho had said during the hearing that he wouldn't shoot from the hip, that he wanted to think about what decision to make in the case. On Friday, he decided to delay indefinitely Adams' trial and to ask an independent lawyer, Paul Clement, a former solicitor general for the Justice Department, to argue why the case should not be dismissed. Basically, he's asking for an independent third party to come in and make the argument against what the Justice Department and Adams' defense lawyers have made.
Dana Taylor:
Bart, as you know, there is a dispute with the Trump administration and the wire service The Associated press, a more than century-old institution of international journalism, regarding his renaming of the Gulf of Mexico to the Gulf of America. Because it services a lot of international clients, most of whom will not recognize Trump's renaming of that body of water, the AP is refusing to use Trump's new name in its coverage, and that's led Trump to deny access to his events and news conferences. Is this legal? Are there any precedents here?
Bart Jansen:
It's not really a dispute about a law. It's more an argument under the First Amendment of the Constitution about freedom of the press and whether certain press outlets are going to be favored by the administration. The crux of it is that Trump argues that he is being treated disrespectfully by having The Associated Press challenge his order, that the Gulf of Mexico be renamed the Gulf of America. He contends that this will be the case for all federal agencies will recognize this and wants to have it respected and understood that this has taken place. On the other side, The Associated Press wants access to news conferences to the small group of people who follow the President everywhere called The pool, who often get offhand remarks from the President or details that the wider range of reporters do not get. There's a huge advantage for the wire services, such as The Associated Press, to tag along with the President wherever he goes.
This is fairly unusual. Presidents have, in the past, taken issue with how various organizations cover them. They get upset, they'll stop taking questions from specific news organizations, or try to stop providing information to them, but this has raised concerns across media groups about what access will be provided to Trump if he succeeds in blocking one of the largest news-gathering organizations on earth. If he blocks The Associated Press, then the question is, okay, what happens to Reuters and to Bloomberg, other news services, if they write something that he disagrees with? The nature of the press is to write adversarial stories that an administration won't always agree with, so if he blocks access to one, could it happen to others? This is raising significant concerns in the media and the White House Correspondence Association is in talks with the Trump administration to find an amicable resolution, but it's not clear where that answer lies, because if The Associated Press sticks to its guns and refuses to change its labeling of that body of water and the Trump administration refuses to recognize them because of that decision, it's not clear where the middle ground lies.
Dana Taylor:
I want to put President Trump's challenges of executive power into context here for our listeners. Are there examples of other presidents who've issued executive orders that exceeded the power of the executive branch?
Bart Jansen:
Yes. One of the touchstone cases was when President Harry Truman in 1952 tried to seize control of steel mills during the Korean war because he was worried about steel production falling off during the course of that war, but the Supreme Court ruled that he did not have that authority and prevented him from taking over those steel mills. More recently, President Joe Biden tried to forgive student loan debt, totaling $430 billion through executive action rather than through legislation. Again, the Supreme Court ruled that he had overstepped his authority and prevented him from enacting that policy. He tried to find other ways to enact student loan relief, but that major program in his initial proposal was rejected.
Dana Taylor:
Congressional oversight of the executive branch increased following former President Nixon's Watergate scandal. Are the powers vested in each of the three branches of government fluid, and is what looks like President Trump's attempt to significantly expand the powers of his particular branch, the executive branch, truly unprecedented?
Bart Jansen:
I think it's fair to say that the power of each branch waxes and wanes with the personalities who are within that branch at any given time. In the past, the power of Congress can be weakened or diluted if the Senate and the House are in the hands of different parties. They can bicker about what priorities they want to set and not achieve anything. In contrast, a senate leader, such as a Lyndon Johnson, is viewed as a very strong leader, and perhaps the power of Congress becomes greater during a period like that. Likewise, when the Supreme Court has a 5-4 ideological majority, the decisions are narrower and perhaps could tip either way, and so the decisions that you're likely to get are more uncertain. But today, there is a 6-3 conservative majority, and so there is more expectation about which way cases might be resolved.
Likewise, a president might have greater or less power depending on his national popularity. At this point, President Trump won a majority of the popular vote, and he won, as he likes to crow about, all seven of the contested swing states in the 2024 election, so he claims a strong federal mandate to carry out his priorities. Now, a president's power can also weaken if he does things that weaken that popularity, such as high inflation during President Jimmy Carter's administration and during President Joe Biden's administration weaken their ability to do other things rather than fight just to improve the economy. The question, as Trump continues to pursue his priorities, is whether they remain popular. If the public started to be unhappy about federal agencies being dismantled or federal workers not doing the jobs that they thought had been approved, perhaps his popularity could wane, but that's yet to be seen.
Dana Taylor:
Having reviewed several conflicts now between the three branches, are we in a clear constitutional crisis? If so, how would this be resolved?
Bart Jansen:
I think we have to continue to wait and see whether we are in a constitutional crisis. The obvious crisis could come if there is a significant dispute between President Trump and Congress about spending priorities. But at this point, Congress is controlled by Republicans who tend to agree with President Trump and his priorities, and so they have not taken vocal issue with the decisions he's been making so far. One hint of a potential crisis, though, has come in some of his cuts. In one case, his administration capped the reimbursement rate that the government provides on research funding for medical issues, and that covered research labs in numerous Republican states as well as Democratic states. Senator Susan Collins of Maine, who heads the Appropriations Committee that decides spending priorities, said she was upset about his move to cap that reimbursement rate, basically paying labs less than they thought they deserved for their cutting-edge medical research on issues such as Alzheimer's and cancer.
She said she had contacted the new Secretary of Health and Human Services, Robert F. Kennedy Jr., to voice her opposition to that cap. He said he would review it. That's the kind of dispute where if the administration sticks to its position, that Congress might become more contentious and say, "We want our spending priorities enforced." She said that the Appropriations Law prevents a change in that reimbursement rate in the middle of a fiscal year, so that's the kind of issue that could ultimately be sent to the courts and eventually, possibly, to the Supreme Court to be resolved. But lawmakers haven't even filed that sort of a lawsuit challenging the way Trump has interpreted their spending directives yet, so we're nowhere close to having that kind of a showdown yet in the courts.
Dana Taylor:
Of course, there are many, many topics here, Bart, that we didn't get into today, mass government workforce firings and Elon Musk rule among them, but I would encourage listeners to tune into The AM Show and keep an eye out for a special deep dive on Elon Musk, which is coming soon. Thanks for coming on The Excerpt court.
Bart Jansen:
Thanks for having me.
Dana Taylor:
Thanks to our senior producers, Shannon Rae Green and Kaely Monahan, for their production assistance. Our Executive Producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts@usatoday.com. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.