Are We On The Brink Of A Constitutional Crisis?
Sources:
Lindsay Whitehurst, Third judge blocks Trump’s order ending birthright citizenship for kids of people in US illegally, AP News, Feb. 10, 2025, https://apnews.com/article/trump-birthright-citizenship-order-lawsuit-edc182abc957868840f28c4bfb5326b6
Dahlia Lithwick, Trying To Undo A Coup, In The Courts, Amicus Podcast, Feb. 8, 2025, https://slate.com/podcasts/amicus/2025/02/doge-doj-fbi-elon-and-trumps-acronym-apocalypse-is-losing-in-court
Daniel Wiessner, Timp Reid, Nathan Layne, US judge blocks Trump buyout program as 60,000 sign up to quit, Reuters, Feb. 7, 2025, https://www.reuters.com/world/us/us-government-workers-face-buyout-deadline-trump-presses-ahead-with-overhaul-2025-02-06/
Mike Scarcella, Mate Raymond, Luc Cohen, US judge blocks Trump from sending transgender women to men's prisons, Reuters, Feb. 5, 2025, https://www.reuters.com/legal/us-judge-blocks-trump-sending-transgender-women-mens-prisons-2025-02-05/
Attorney General James Leads Multistate Coalition in Suing to Stop Elon Musk and DOGE’s Attacks on Americans, Office of New York State Attorney General Letitia James, Feb. 7, 2025, https://ag.ny.gov/press-release/2025/attorney-general-james-leads-multistate-coalition-suing-stop-elon-musk-and-doges
Anthony Izaguirre, Federal Judge Blocks DOGE From Accessing Sensitive U.S. Treasury Department Material, Time, Feb. 8, 2025, https://time.com/7214089/federal-judge-blocks-doge-accessing-sensitive-treasury-department-material/
Transcript: Musk’s Threats Darken as MAGA Rages at Fresh Legal Losses, The Daily Blast with Greg Sargent, The New Republic, Feb. 10, 2025, https://newrepublic.com/article/191336/transcript-musks-threats-darken-maga-rages-fresh-legal-losses
Alexandra Marquez, Legal experts warn of 'constitutional crisis' as JD Vance and Elon Musk question judges' authority over Trump, NBC News, Feb. 9, 2025, https://www.nbcnews.com/politics/white-house/legal-experts-constitutional-crisis-vance-musk-judicial-rulings-trump-rcna191387
Billal Rahman, Court Blocks Donald Trump Sending Migrants to Guantanamo Bay, Newsweek, Feb. 10, 2025, https://www.newsweek.com/court-blocks-trump-migrant-transfers-guantanamo-bay-immigration-2028683
Ed Mazza, Rep. Jasmine Crockett Reveals What GOP Lawmakers Secretly Say About Elon Musk, HuffPost, Feb. 3, 2025, https://www.huffpost.com/entry/jasmine-crockett-elon-musk_n_67a05410e4b05219014577bf
Transcript:
In order after order since his inauguration, Trump has attempted to dismantle the government, our rights, and the constitution in ways that are often blatantly illegal. Through his lackeys now positioned in key agencies and Elon Musk positioned as his Extra Special errand boy, Trump has made every attempt to make good on his promise to go after his supposed enemies and, as Project 2025 foretold, amass as much power as possible into his own hands and out of the hands of the rest of government. Last week, our episode on Wednesday discussed the absolutely abysmal response by Congressional Democrats to do anything even remotely approaching oppositional and oftentimes even conceding and going along with Trump appointments and other actions, indicating that there’s not a lot of faith to be put in the legislative branch to follow through on their whole end of the checks and balances bargain. They’re so bought out by monied interests and frozen with fear over getting re-elected that they have no real impulse to do anything at all that might, I don’t know, SAVE THE REPUBLIC. And so the job, the full weight of our system of checks and balances, falls on the shoulders of the judicial branch. The one branch where there are a handful of judges with the gumption to actually stand up for the rule of law and what’s left of this country’s constitution. And SOME OF THESE JUDGES ARE REAGAN APPOINTEES Y’ALL. Dare I say Reagan would be an improvement over what’s happening right now. That’s how you KNOW it’s bad. But as judges have stepped in to remind Trump and his cronies about what the law says and how they’re blatantly breaking it, the judiciary has come under increased scrutiny and attacks from Trump, JD Vance, Elon “Daddy Issues” Musk, and others hell bent on tearing apart this country limb by limb. It’s becoming what some legal experts are calling a coup, an all out constitutional crisis. But what does that mean? Like literally WHAT’s a constitutional crisis? And what happens if Trump decides to ignore the final say from judges on what is and is not against the law? Let’s get into it. But, uh, first a major palate cleanser.
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Not to keep harping on this but just to again give you a lay of the land as I’ve been doing at the beginning of every episode lately because it can feel very overwhelming and that’s very much by design: Trump passed a number of executive orders, I covered them in my episode right after the inauguration. Those executive orders that were especially egregious included ending birthright citizenship, declaring an emergency at the border, pausing all federal funding, and denying employment protections for career civil servants. Thats the head of the beast. From there, the tentacles spread through various government agencies, now headed by Trump loyalists, issuing new rules and regulations to carry out Trump’s many orders. The people pulling the strings behind Trump, who is mainly getting spray tans, going golfing, and saying whatever comes to his mind at press conferences and in media interviews, the people actually doing the work, his underlings eager to please him and eager to mold the government in their ultra right wing image, are basically just going line by line through Project 2025 and checking off boxes. The executive branch is being dismantled in favor of concentrating as much power as possible in the hands of the president, who then doles out roles to his most loyal henchmen who then scurry off into the night to dismantle the parts of government meant to protect people, like USAID or the Consumer Financial Protection Bureau, the agency tasked with holding businesses accountable and returning money to the pockets of US consumers who were wronged, and whose employees were told to stay home this week, while beefing up the parts of the government meant to police people, like sending the military to the border to stave off the ENEMY INVASION of like young families and their babies who are trying to find work and a place to live. ENEMY INVASION SEND IN THE TROOPS.
And because the Project 2025 playbook has been in circulation for at least a year and a half, and the far right faction of the Republican party is apparently the only one who read or prepared for its eventual implementation, these things are happening at fucking BREAKNECK speed because they were ready and waiting in the wings to execute. And now every other corner of the government is trying to play catch up, even though they literally told us their plan at least a year and a half ago!!!!
Luckily, however, there are some people who actually prepared, and so as quickly as these orders or coming out, there are also non profits, legal orgs, unions, state attorneys general, and others who are slapping them with lawsuit after lawsuit in an attempt to block the worst of the fallout. It’s happening so fast that just as the work of the executive branch to undermine the entire government is hard to keep track of, it is also hard to keep track of all these lawsuits and what’s happening with each of them. Because the judiciary is a very slow tortoise of a branch, many of the lawsuits have yet to be heard or even have initial hearings scheduled. But some of them DID move quickly to at least get emergency injunctions put in place, which is where a judge says that a law or order cannot go into effect until the judicial branch has had time to hear the case and determine the legality of the order or action. And because of the brazen ineptitude or, even worse, blatant complicity of our lawmakers, both Democrat and Republican alike, it is truly just these injunctions and these judges who are holding the line for this country. Like I don’t mean to be completely hyperbolic here, fearmongering isn’t my jam, but I think I’m being quite realistic when I say that. We are walking a tightrope here and the only thing holding the other end of the rope in place is a few judges in robes who are willing to stick their necks out and actually faithfully apply the rule of law.
Here’s how they’ve done that so far: After Trump issued his executive order saying that the 14th Amendment does not guarantee birthright citizenship and never has, which goes blatantly against the plain language of the constitution as well as a century and a half of judicial precedent, multiple lawsuits were filed by state attorneys general and others to try to stop the order. At this point at LEAST three different judges have blocked that order, in New Hampshire, Seattle, and Maryland. The Trump administration is appealing the ruling in the Seattle case, which issued an indefinite injunction, and just because I want to drive home that there are judges out there taking their role very seriously and doing courageous things to stand up to literal tyranny, I want to play this recording from that Seattle judge on Thursday, which I first heard on Dahlia Lithwick’s podcast Amicus, episode titled “Trying to Undo a Coup, In the Courts.” This is the judge, judge Conougher (CON-HOUR), issuing his ruling from the bench:
“It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow. I said this two weeks ago, and I’ll say it again today. There are moments in the world’s history when people look back and ask, where were the lawyers? Where were the judges? In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. As a judge, my job is not only to uphold the law, but to protect the rule of law itself. Birthright citizenship is a fundamental constitutional right. The 14th Amendment secures the blessings of liberty to our posterity by bestowing on all those born in the United States and subject to its jurisdiction the rights of citizenship. We are all citizens, subject to the rule of law. No amount of policy, policy debate can change that. And the fact that the government has cloaked what is effectively a constitutional amendment under the guise of an executive order is equally unconstitutional. The Constitution is not something with which the government may play policy games. If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution. Its that’s how our Constitution works, and that’s how the rule of law works. Because the president’s order attempts to circumscribe this process, it is clearly unconstitutional. The preliminary injunction is granted on a nationwide basis.”
Writing like that makes me excited about the law, truly, it’s so biting but so smart. Anyway, Trump has appealed that ruling, which is the proper mechanism by which he should be challenging these cases against him. Hopefully the judges in the appellate courts will agree with this judge. And while it may be appealed all the way up to the Supreme Court, Dahlia Lithwick in that same Amicus episode made the compelling point that the Supreme Court does not hear every single case appealed up to it. It chooses which ones to hear and has limited bandwidth for taking on cases. So the sheer quantity of lawsuits and the number of appeals makes it pretty much impossible for the Supreme Court to hear every single case. So even though yes they seem predisposed to rule in Trump’s favor and in favor of making the President a lil tiny King, they likely cannot realistically do so for all these cases. That should not be the one thing giving us peace of mind that the judicial branch will hold up their end of the checks and balances bargain, and that the courageous rulings of these lower court judges will not be in vain, but ALAS. The Supreme Court traded in its soul and its credibility to be lapdog to a megalomaniac dictator. Thems the breaks. And we can also rest easy knowing that despite the speed of these preliminary injunctions, the judicial branch does typically move at a snail’s pace, so it’ll take a minute for these things to reach the Supreme Court, if they ever do.
OKAY, elsewhere, in the District of Columbia, which is where a lot of these lawsuits were filed, a lawsuit was filed on Friday by two unions representing the USAID workers. In that case, Judge Carl Nichols issued a temporary injunction on the Trump administration’s plan to place 2200 USAID workers on paid leave. It also reinstated the 500 workers Trump had already placed on administrative leave. The temporary injunction is only set to last until the 14th because there is a hearing scheduled for this Wednesday, the 12th, where he will consider a longer-term injunction. The lawsuit also sought a restoration of federal grants and to reopen USAID buildings which, according to reporting from the BBC, Judge Nichols seemed less likely to grant, though further hearings will be necessary. Judge Nichols, by the way, is a Trump appointee, and sided with the unions saying they would suffer "irreparable harm” without the injunction, while the government would suffer “zero harm” from this injunction. And if that doesn’t make you feel slightly warm and fuzzy inside I don’t know what will!
At the end of last month, a judge blocked the Trump administration’s freeze on all federal funding, an order Trump later withdrew, which despite the chaos does present a potential sign that there are even limits to the amount of chaos his administration is willing to create. They have to continue to at least APPEAR legitimate, you know. It is only through the onslaught of formal orders and following protocol that they will be able to claim legitimacy despite the orders themselves blatantly breaking the law. It’s the Hitler method. Use legitimate means to break down the government until you’ve broken it down enough that there’s no checks or balances left.
Separately, last Thursday in a lawsuit filed by unions on behalf of federal employees, a federal judge blocked Elon Musk’s proposed buyout of federal workers. This was the one where federal employees were sent an email with the subject line “A Fork In The Road” exactly the same subject line as the one sent to Twitter employees. They were then instructed that they could resign by sending an email with the word RESIGN in the subject line, and they would continue to receive pay and benefits until October. 60,000 employees have taken the offer, representing about 2.5% of the total federal workforce. Lawyers and other experts have said the buyout offer itself is legally questionable–like it could be rescinded at any time, Congress has to go through an appropriations process in March that could end whatever funding the agencies had to keep paying the employees who took the buyout. This temporary injunction only lasts until today, Monday, as the judge is set to hear arguments in a hearing today on whether the injunction should continue so the case can play out.
Last Tuesday, a judge blocked the Trump administration from sending transgender women to men’s prisons and terminating their gender-affirming care. The lawsuit was brought by three transgender inmates and the injunction applies to all 16 transgender women currently in federal women’s prison. According to reporting from Reuters, there are 2,230 trans inmates in federal prisons and halfway houses. 1, 506 are trans women mostly being held in men’s prisons. That too was an injunction against Trump issued by a Reagan-appointed judge, finding that the government had not adequately disputed the transgender inmate’s assertion that they were at higher risk of physical and sexual violence in violation of their 8th amendment rights against cruel and unusual punishment. And on Sunday a federal judge temporarily enjoined the Trump administration from transferring three Venezuelan men in immigration detention to Guantanamo Bay, though other immigrants have already been transferred there.
On Saturday, a federal judge issued an order blocking DOGE from accessing sensitive data on Americans through the Treasury Department’s payment system that it forcibly ransacked last week. This order was the result of a lawsuit brought by 19 state attorneys general against the Trump administration in a case filed in New York City, saying that DOGE violated federal law, created security risks, and opened up the possibility that those with improper access to data could initiate illegal freezes on federal funds. New York AG Letitia James issued a statement: “This unelected group, led by the world’s richest man, is not authorized to have this information, and they explicitly sought this unauthorized access to illegally block payments that millions of Americans rely on, payments for health care, child care and other essential programs… President Trump does not have the power to give this sensitive information away to whomever he wants. And he does not have the power to cut federal spending that Congress approved, much less to do so by giving the richest man in the world the keys to all Americans’ most sensitive information.” Separate lawsuits have been filed by unions and other advocacy groups to block access to the payments system and to protest the creation and opaque practices of DOGE. According to reporting from Time, a judge in Washington state issued an order on Thursday temporarily restricting access to two employees with “read only” privileges.
There are some alarm bells being raised about these lawsuits in particular, as there is conflicting information about the extent of the access DOGE has to the payments system. The government is insisting that DOGE only has “read only” access, they can see stuff but they can’t control the payment system. However, people inside the Treasury Department and others with knowledge of the DOGE takeover of the system have said that they gained complete control and access to the system, meaning they could have the power to mess with payments for virtually every aspect of the government. Everything from social security payments to major government contractor payments. This is concerning not only because it’s horrifying that the richest man in the world, as an unelected private citizen, with millions if not billions of dollars flowing to his own companies and their competitors from the federal government, would have that kind of power. But also because if it is true that they have more access than the federal government’s lawyers are alleging in these various cases, that indicates a new level of government attorneys being willing to knowingly lie in court about what the administration is doing. That goes beyond ethically dubious and into criminal territory. But perjury would be a crime that would have to be punished through criminal lawsuits filed by… by the federal government. You see how this gets complicated when it’s the federal government doing the perjuring.
And according to reporting from The New Republic and elsewhere, these losses in court, especially related to DOGE, are pissing off the right wing operatives that have the most to gain from the judiciary laying down and not enforcing the law. And this is where shit is starting to get pretty spooky. And why some legal scholars are saying we are on the brink of a constitutional crisis.
According to the constitution, 250 years of precedent, and the basic functioning of our government, it is judges’ jobs and the job of the judicial branch to determine WHAT the law says. Lawmakers write it, judges interpret it. And especially in these cases and in the federal government, often the judges are the determiners of what the constitution says. And once they make that determination, it is meant to be followed. The only way to change what the constitution says is through a whole ass amendment. And if lawmakers don’t like what the judge says their law means, they have to rewrite the law and try again. If a president doesn’t like what the judge says their order means, they have to try again with a new order using a new legal theory. They can appeal rulings and fight it out until they have exhausted their appeal options in court, but they have to follow what the judges say until they win in court. And if they don’t win, they have to follow what the judges say and act according to the courts’ interpretation of the law or the constitution, unless and until a new law or order or amendment is written to try to clarify or reword things in a way that aligns with the new way they want the law to be interpreted. It is in this way that the constitution functions and the checks and balances among the three branches interplay so that no one branch has unilateral and final say on anything with zero check from any other branch. That is very much by design because the founders were coming from imperial England where the King’s rule was very much unchecked. But checks and balances mean sometimes not getting your way. And that is very inconvenient and aggravating especially for people who always get their way because they can buy their way into anything.
And so, predictably, Musk and others are throwing a temper tantrum online in response to not getting their way. Which would be cute and childish if it weren’t for the fact that the ideas they’re espousing amount to a full blown constitutional crisis, if acted upon. Elon especially has been active on Twitter agreeing with and reposting all sorts of slop, including Senator Mike Lee’s assertion that Trump is facing a “judicial coup.” Basically, all these judges, sitting on their own in their respective chambers and applying the law to the facts and issuing rulings based on their legal opinions, are staging a coup. And definitely not the group of unelected people literally forcibly entering government buildings and stealing our data. No coup there!!! Musk reshared a tweet from someone suggesting that it’s time to defy judicial rulings and another one that said “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us.” Right, that’s the point. The point is that you don’t have the option to break the law. That isn’t an option. There are no other options because the things they’re trying to do are ILLEGAL. That’s like saying well this judge issued a restraining order against me so I won’t murder this person, so I’m just wondering what other option this judge is leaving me, but to defy the judicial ruling and go ahead and do the murder anyway???
And Musk loooooves to claim plausible deniability by saying that a retweet doesn’t mean an endorsement but, I don’t know, I’m not over here reposting things I don’t agree with unless it’s to say some things about how I don’t agree with it, ya know? You don’t get to say well just because I disseminated these ideas to my millions and millions of followers doesn’t mean I’m PROMOTING them!!!
Matt Gaetz also called for the impeachment of the judge because of corruption which is fucking RICH coming from someone with a full ass federal investigation against him filled to the gills with evidence of corruption.
JD Vance loves to quote Andrew slaveholding rapist trail of tears Jackson, saying “The Supreme Court has issued their opinion. Now let them enforce it.” Understood to be a challenge to the court, saying I see what you said, now make me. Vance also tweeted “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. Judges aren’t allowed to control the executive’s legitimate power.” Which like yeah, no shit sherlock. These judges aren’t trying to control his legitimate power. They’re trying to curtail his illegal exercise of power. It is not legitimate if it is against the Constitution or the law.
All of this taken together paints a pretty bleak picture wherein the people who hold the reins of power at the highest level are, at the very least, willing to question and attempt to undermine the legitimacy of the judiciary. As Northeastern University law professor Dan Urman recently told NBC, "The bottom line is that our system is predicated on good faith but also the rule of law in America means that the government abides by court rulings. The courts… lack the power of the purse and the sword. They don't have an army, and they don't have a huge budget. They have to rely on their legitimacy."
In a world where Trump and those in his administration do decide to shirk the ruling of judges, there is one final check on that power. They would be acting illegally, outside the confines of the law. They would then be committing what would amount to blatant high crimes and misdemeanors. They would have to be impeached. By Congress. You know, that limp dick we talked about last Wednesday. This is the constitutional crisis experts are warning about. The executive takes unlawful actions, the rulings by judges are ignored, and Congress does nothing to stop it. It is the complete breakdown of democratic governance and of the functioning of the entire system. It is tyranny because it is power unchecked by any intervening force. It is fascism because it does so gleefully while also practicing brutal nationalism and directing the police force of the nation against vulnerable minorities and political enemies. As Robert Paxton presciently described in his 2004 book Anatomy of Fascism, we have not seen any fascist regime that lasts a long time. We have not seen a fascist regime that does not end in complete implosion because the people implementing the regime would rather self-destruct than admit defeat. The creation of fascist power does not rest simply in the hands of a single populist leader hellbent on watching the world burn. It also doesn’t result simply from that leader being surrounded by oligarchs with capital. A key ingredient for fascism to flourish and, eventually, implode, is the acquiescence of those in positions of power to that leader and his party. It is conservatives who genuinely believe in respecting the rule of law but who are so terrified of the potential of leftist leadership that they’re willing to go along with the tide of right wing fervor that brings the fascist leader into power.
According to Representative Jasmine Crockett, many in the Republican party are doing just that. Quietly behind the scenes hand-wringing about the lengths especially Elon Musk is willing to go to undermine the rule of law in the country, but unwilling to speak out because they are so beholden to monied interests, so terrified of getting re-elected, and so blindly anti-leftist that they, too, prefer self destruction over the potential of defeat.
Fascism is not an inevitability of history. It was not inevitable in Germany or in Italy. Conditions have to be right for it, of course, but fascism is the result of a series of choices, over and over again, by the people in power, by the people around those in power, to acquiesce to the leader and to his party, out of sheer self-interest and cowardice. As of right now, a few judges are standing up to this overreach in the only way they can under our system of government. The fate of the country rests in whether Trump and MAGA leadership will follow their rule and, if not, whether Congress would have the will to successfully impeach those leaders under the constitution. Without that, we will have a constitutional crisis on our hands. I encourage you to make as much noise as possible about this. I laid out a few things Congress members could be doing to thwart the advance of Trump initiatives in my last episode and our elected representatives need to be put on blast. Things are overwhelming and you know I don’t like fearmongering, I would not be painting such a bleak picture if I didn’t think it was time to sound the fucking alarms. To help with overwhelm, I highly suggest you focus solely on putting your elected representatives on blast. Show up to their offices. Call them. Email them. Write them letters. Tell them Trump must be stopped and it is their job to put up as many road blocks as possible. You can simply ask them: what are you doing to stop Trump? Put them on blast every time they do something you don’t like. Make it your mission to be as annoying as humanly possible to the short list of people who call you a constituent. By focusing your efforts in that way, you will be a lot more effective than if you were to try to do everything and save everyone.
And educating yourself is important, too. You can join me over on my Patreon community where I just launched the Why, America? Co-Learning Lab, a learning community having discussions and making connections, along with a monthly syllabus curated by me. All year we’ll be covering topics under the umbrella theme of “Eat the Rich: Building Solidarity in the New Gilded Age.” February’s topic is all about how to build a movement, even when you’re feeling overwhelmed as hell. This is all hosted over on Patreon, which is linked down below. If you’re interested, please join us. Patreon dot com slash leeja miller.
Thank you to my multi-platinum patrons Thomas Orf, Sarah Shelby, Art, David, R_H, L’Etranger (Lukus), Joshua Cole, Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you!
And if you liked this episode, you’ll like the one from last Wednesday in which I lay out the ways the Democrats SHOULD be fighting back in Congress.
