We the People: a Constitution in Crisis

What Actions Against Protests in Los Angeles, Ending Birthright Citizenship, and President Trump's Third Term all have in Common

“Constitutional crisis” has being thrown around a lot in recent months. I think academics and leftists have been getting caught up in the bookish definition, and that non-political scientists (that is, most of the population on any side of the aisle) probably do not have a solid conceptual definition of what exactly that is. But briefly, a small “c” constitutional crisis occurs when the normal function of government is impeded by some law or order and process stops. In giving some practical ideas of what this looks like, the first thing that comes to mind is the stoppage of federal grants and loans (and the Department of Government Efficiency’s capture of the Treasury Payments system)¹. Congress legally alone has the power to start and stop payments; impoundment, as it called, is the act of the President holding onto these funds without disbursing them and is strictly illegal by the Congressional Budget and Impoundment Control Act of 1974². Alternatively, a case can be made for the unlawful deportation of U.S. residents (and the ongoing surrounding fallout in Los Angeles); more specifically, it will be the case if the executive branch continues to ignore court orders.

I believe that the political science definition of a constitutional crisis is quite useless for the current predicament of the United States. When the sitting President claims that “[he doesn’t] know” if he is supposed to uphold the Constitution (which he is required to by verbal oath³) and that “[he doesn’t] know” if U.S. citizens and noncitizens both deserve due process as laid out in the Fifth Amendment, there is a bit of a “big C” Constitutional crisis. So let me take the opportunity to outline the “big C” Constitutional crisis, some of the ways that the executive administration is undermining the most fundamental rules of law in the country.

A scan of the Constitution of the United States. Public domain photo, credit to the National Archives and Records Administration.

To preface all of this, the judiciary and legislative branches do not have the power of the enforcement of law, only the executive branch does. In that sense, it is somewhat up to the executive branch to self-police⁴. So despite lawsuits, despite appeals in the court of law, and despite Congress’s ability to check the executive branch on many things, the executive branch still needs to respect and respond to rulings and subpoenas. And at the moment, high-level officials seem very interested in contesting this exact thing. To be perfectly clear, I am not a legal scholar, so while there is certainly more nuance to the situation than what you will read below, I have not yet seen a full outline of challenges to the Constitution. I feel strongly that this is important: a basic outline of what is provided as rights to those living in America and what is at stake for the average person who is not well-versed in these matters (along with some contextualization to current affairs).

As a Background

U.S. Const. amend. I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment to the U.S. Constitution is perhaps the most well-known and perhaps the most fundamental. Despite the text specifically mentioning that Congress may not enact laws against any of what is contained in the list, the text has been broadly understood to mean that this extends to enforcement; that is, that any enforcement of any law that infringes upon these things is likewise unconstitutional.

The frequent defamation lawsuits leveraged by the President and his affliates⁵, the seizing of students and revocation of their visas who have outspoken against Israel’s treatment of Gaza, and the demonization of some classes of protestors all bring into question the freedom of speech in this administration. Kicking out the Associated Press from White House events and suing news outlets for unfavorable coverage brings into question the freedom of the press in this administration⁶. And while peaceful protests and assemblies have some history of violent response in the United States, a heavy-handed approach to the current Los Angeles protests yet again brings into question the freedom to peaceably assembly in this administration.

U.S. Const. amend. II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

President Trump has in his first term directly challenged settled Second Amendment rights in discussing violating Due Process. Due to his alignment with the Republican party (and their near-ubiquitous stance on gun rights), it is unlikely that this is a serious challenge yet; however, with a renewed focus on protests this year, if violence escalates (as it currently seems likely to in LA), there may be a renewed interest in this topic.

U.S. Const. amend. IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects U.S. residents from unlawful search and seizure without probable cause and without warrant. In recent history, “without probable cause” has done a lot of heavy lifting, despite certain policies like New York’s stop-and-frisk being struck down as unconstitutional (with the 2nd Circuit upholding that ruling in Floyd v. City of New York).

Maybe most notably, the Trump administration has argued that lack of evidence in preparing in individual for deportation necessitates that very deportation. To note, a person seeking asylum in the United States may have as equal access to their governmental papers as would an alleged gang member.

U.S. Const. amend. V. No person shall ... be deprived of life, liberty, or property, without due process of law…

The Fifth Amendment has been ruled to apply to all persons residing within the United States, regardless of citizenship, in part in Shaughnessy v. United States (although as outlined in that case, they may be detained with cause at the port of entry pending a hearing). Regarding deportation, while there are still some grey areas mostly involving duration of existence in the United States, settled people cannot be evicted from the country without due process, as that would deprive them of liberty and property.

U.S. Const. amend. VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In the history of the interpretation of the Eighth Amendment, there have consistently been considerable outliers. For example, the existence of Guantanamo Bay in Cuba has always been contentious, seemingly allowing “cruel and unusual punishments” to be inflicted upon whoever would be deemed an enemy of the State simply by not allowing it to occur on domestic soil. This Amendment does not stipulate how broad its reach is, but contention arises when actors representing the State violate the statute knowingly. Sending individuals not officially convicted of a crime to El Salvador’s Centro de Confinamiento del Terrorismo (or CECOT) is reasonably included in this line of thinking. Note that a violation of immigration laws in the United States is generally a civil matter and not a criminal one.

U.S. Const. amend. XIV, §1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…

The Fourteenth Amendment contains a particularly interesting issue. Citizenship birthright is somewhat of a Western Hemisphere phenomenon, in that most countries in Europe, Asia, and Africa do not even consider birthright citizenship as a legislative possibility. While this Amendment has largely been uncontentious in the United States, the President in this term has made it a point of contention in part by executive order, supported by Cabinet members like Attorney General Pam Bondi. This is notably a separate initiative from how Justice Thomas seems intent on overturning most precedent decided from the later Due Process Clause⁷ in this same amendment.

U.S. Const. amend. XXII, §1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once…

President Donald Trump has directly challenged the Twenty-second Amendment by repeatedly touting “President for life.” While he has since walked some of these statements back, he continues to “joke” about it, and that sort of rhetoric is fresh to the American government. Former Trump political strategist Steve Bannon (who still maintains some level of influence in such circles) explicitly wants Donald Trump to run for a third term. There is also a proposed bill in the House that would allow for President Trump to run again, amending the existing Amendment.

U.S. Const. art. I, § 9, cl. 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

As a final quick note, habeus corpus should be discussed. The principle of habeus corpus simply states that it is unlawful for any function of government to detain an individual without being able to produce that individual or continue to confine that individual without bringing charges against them in a court of law. Interpretation of this clause has been disparate, but is certainly in effect for the federal government. That said, suspension of habeus corpus as indicated in the clause has occurred four times in the past, probably most notably by Abraham Lincoln during the Civil War. That exact language, “invasion,” is being used as pretense for current ICE sweeps broadly and alledgedly against gang Tren de Aragua. The current administration seems to be discussing the invocation of this clause in suspending habeus corpus under the direction of White House Deputy Chief of Staff Stephen Miller.

What does this mean?

While not all laws are good and perfect, having laws in a general sense is a good thing. Laws provide safety and security for citizens. Laws provide predictability and stability for businesses. Laws confer rights to those that are paying taxes for the express purpose of having those rights. This is not complicated nor is this remotely a contentious statement.

However, some commentators have asserted that the rule of law in the United States is dead. This is owing in part to that the present United States administration seems set on challenging any sort of settled law that does not align with their stated agenda. This is up to and including defying the letter and the spirit of the U.S. Constitution. The first five months of the second Trump administration have been riddled with challenges beyond settled law to settled Constitutional law. This is turn is a threat to settled rights.

While America has had problematic history with poorly treating perceived out-groups (up to and including poor decisions in the Supreme Court), at least in theory it has at least attempted (or pretended to attempt) to ensure “equal justice under law.” Sometimes people discuss how “if one group doesn’t have these rights, no group has these rights” and I think that’s a very coherent argument here. ICE deportation sweeps have caught up U.S. citizens, and the onus of proving one’s citizenship should not be the burden of the individual, it should be the the burden of the deporting authority to prove a reason for deportation. There is some very basic racial issue here, based on how the bulk of ICE sweeps are currently being conducted: the argument that certain individuals may not have to worry about ICE sweeps is implicitly making that argument because those same individuals are not of Latin descent. And that should make some basic level of sense; after all, the executive order is specifically targeting Tren de Aragua, a Venezuelan gang. Presumably, such people would “look” Venezuelan. And the seeming lack of concern for due process seems to highlight how much of this could simply be racial profiling.

To that, it is important to note just how much terminology seems to be being intentionally muddled; this administration is willing to label citizens exercising their First Amendment rights as “domestic terrorists” and then to take away or threatening to take away Due Process (Fifth and Fourteenth) rights for “domestic terrorists.” There is no effective boundary; there is no realistic difference between these two groups, and the verbiage is the same. It seems to be that the message is “fall in line with current U.S. policy and you have nothing to worry about.”

Why does this matter?

President Trump and his administration evidently does not care for the rule of law. While conservative justices, congresspeople, and executive officers in the United States have long been accused of interpreting and writing laws that favor them or their interests, this trend of ignoring the concept about being “above board” is quite new to the Trump presidency.

The Constitution under threat alone is likely not a popular subject enough to see mass protests; however, coworkers, neighbors, and loved ones being seized without a warrant or probable cause has shown public pushback against ICE most notably in Los Angeles. Overwhelmingly, the people protesting currently are people exercising their 1st Amendment rights in demanding that the government respect others’ 5th and 14th Amendment rights. The U.S. Constitution affords due process to every resident, not only to citizens or to people that align with our political views⁸.

One saving grace is that seemingly unlike most of the majority in Congress (save a rare few like Senator Lisa Murkowski who spoke out in April), the Supreme Court actually seems intent on maintaining a modicum of separation of powers. The White House is seeing fit to contest this too, however. Currently, the Trump Administration is hiding behind their assertion on, for example, wrongfully and mistakenly deported Kilmar Abergo Garcia⁹, being a member of MS-13 and worthy of deportation.

Secretary of State Marco Rubio has asserted that “no court… has a right to conduct the foreign policy of the United States.” What the Supreme Court gave their exceedingly rare 9-0 opinion on in Trump v. J.G.G. does not constitute foreign policy, it merely concerns upholding the law while conducting that policy, which is very much within their purview. Willfully and deliberately ignoring that point seems to be a recurrent trend. The White House also seems to be justifying their case by repeatedly claiming that García is a member of MS-13, of which they badly formed “proof”¹⁰ to support their argument. This also ignores the point that even if we suppose that he would be in MS-13, it ultimately does not matter because he is afforded the legal process (not to mention, in his case, there was already outstanding court precedent).

I believe that there is a messaging problem around a “constitutional crisis.” Leftists debating the term by adhering to the strict political science definition undermines efforts to align behind the cause. I believe that the US is experiencing a constitutional crisis, but I believe that is and should be largely irrelevant because the political science definition is nearly meaningless for the average voter. I believe more to the point that the U.S. Constitution is in crisis. I am not attempting to debase the term, but Americans are generally not civically aware and the logic of a jump between “there is no constitutional crisis” and “the Constitution is not is crisis” is way, way too small. People need to be exact in messaging right now. Keep what is real and tangible to voters in mind.

The Republican party has long been affiliated with “states’ rights,” which has in turn long been used in (usually racial) discourse as a colloquialism for everything from justifying segregationism to white supremacy. Current Department of Homeland Security Secretary Kristi Noem as recent as 2024 stated that federalizing the National Guard in Texas would be an affront to states’ rights. One year later, she advocates for the same in California, just this past weekend, to curb the protesting in Los Angeles because she disagrees with the leadership in California. Important to this conversation is that in both practice and procedure, fundamentally, the U.S. Constitution is states’ rights. The Amendments to the Constitution are composed of binding laws created by federal legislature elected by the constituency of the states, then later ratified by individual state legislature or ratifying conventions in the states, giving up their control on certain matters to the federal government to ensure equal protections and rights across state lines. Even the current proposed “One Big Beautiful Bill Act” championed by the President and his administration strips away civil technology regulation from the states, hardly indicative of a promotion of state’s rights. A necessary takeaway from this administration must be that the a significant core of the current Republican party never cared about actual states’ rights: they only ever cared about “States’ Rights.”

So how do we change this?

The excesses of the first Trump administration were curbed largely by his own administrative team, but now, the guardrails are off. Some point to the Supreme Court’s pushback as one of the stopping points of how far this administration will push the limits, but this resembles complacency too strongly for me to advocate for. Even if the Supreme Court successfully halts the steamrolling of the Constitution, so many other things have been lost to get us to this point. American economic policy is nonexistent and many fear that we are diving headfirst into a recession, American foreign policy has significantly harmed relations with many countries (including our closest allies), and American health policy is creating an autism registry and downplaying measles outbreaks. Americans cannot become complacent even if the Constitution remains nominally intact because things are still actively getting worse regardless.

Contacting your Congresspeople is a good first step. Tiny cracks in total party loyalty to this administration are beginning to show, and the opposition is starting to display signs of having a spine. Americans, both businesses and individuals, need to keep up the pressure on Congress to effectuate any change; after all, public opinion of this administration is quite poor and yet while there are signs of brakes being applied, it does not really look like the train will be stopping any time soon.

For demonstration, there are regular peaceful protests happening through e.g. 50501 in most major cities, with the next being this Saturday, June 14th. If you are in a position to do so, consider demonstrating in “No Kings” for a few hours to lend your solidarity. Peaceful protests are effective and necessary. According to Erica Chenoweth of the Harvard Kennedy School, this looks like 3.5% of the total population to effectuate change, which is very manageable given the current disapproval ratings. Silence is synonymous with passive acceptance. America needs its people to stand with its institutions and with its law or it risks losing both entirely.

1. It is my personal belief that this is both a serious threat to Congressional power and a very real leveraging tool, roughly equating to: “we will withhold payments exactly like this if the budget that you come up with does not meet our expectations,” which I believe has happened with the “One Big Beautiful Bill Act.”

2. The President argues the Impoundment Act is unconstitutional, and the current lawsuits and court orders concerning this will likely get appealed up to the Supreme Court until they either deem it so or reaffirm Congress’s power in this matter.

3. Included for context here, is the only explicitly-laid-out verbal oath in the entire United States Constitution:

U.S. Const. art. II, § 1. …Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

4. Sen. Booker of New Jersey introduced a bill in late May to move the United States Marshal Service from an agency subordinate to the Department of Justice under the direction of the U.S. Attorney General, to being under the direction of the Chief Justice of the United States (i.e., the head of the Supreme Court and the judiciary branch).

5. While he has just exited the administration, Elon Musk for example has described himself as a “free speech absolutist” yet bans people regularly from X (formerly known as Twitter) seemingly based on ideology and engages in verbal plans to sue former Rep. Jamaal Bowman for defamation. Exceptions do not bode well for absolutism.

6. It should be noted that the Supreme Court has recently reaffirmed some freedom of the press protections in choosing to not hear a case attempting to overturn precedent in New York Times v. Sullivan.

7. Included for context here, a Due Process Clause is found in two amendments, the Fifth and the Fourteenth:

U.S. Const. amend. V. No person shall ... be deprived of life, liberty, or property, without due process of law.

U.S. Const. amend. XIV. ...nor shall any State deprive any person of life, liberty, or property, without due process of law.

8. This case has been insane to follow and would be deserving of its own post, but simplifying to outline (sources in the main body of the text):

1. Maryland resident Kilmar Abrego García gets seized by ICE.

2. He gets deported and shipped to CECOT in El Salvador, despite having a court order preventing his deportation.

3. White House admits they made a mistake in deporting him, but claims that they can’t do anything because he’s now outside of federal jurisdiction.

4. D.C. district court issues that the executive branch must uphold their duty of care in bringing him back, promptly appealed by the Trump administration.

5. Supreme Court agrees with the district court and upholds 9-0 that the administration must facilitate García’s return.

6. Various officials, including the Attorney General and the Secretary of State, argue that the court’s order is invalid and goes against the executive purpose, arguing now that the man is a member of MS-13 (a gang) while providing nearly no evidence to support this (and deliberately ignoring the fact that even if true, does not change his rights as a human residing in the U.S.).

7. These arguments are flanked by Salvadoran President Bukele’s visit to the U.S., whose country is being paid to maintain custody of some deported peoples, including at CECOT. He has stated that García will remain in Salvadoran custody.

8. Maryland Senator Chris Van Hollen visited the facility in El Salvador to discuss what can be done. He was initially denied a meeting with García; however, he was later granted this meeting. Pressure around this event saw García moved to a different, lower security facility.

9. García has now been returned to the U.S. in the state of Tennessee, under charges of human trafficking from alleged repeated incidents.

This is not meant to be an exhaustive retelling of events, but it is meant to capture how shocking the entire ordeal has been (and this is only from a legal perspective, not a humanitarian one). Attorney General Pam Bondi described this as, “this is what American justice looks like.” American justice looks like mistakenly deporting a man who had an exact court order preventing his deportation, shipping him outside U.S. jurisdiction, only seemingly bringing him back to the United States to save face by finally charging him with a crime domestically? If these charges existed all along, why was standard process completely ignored? “American justice,” whatever it is, seems quite arbitrary and at the whims of the administration.

9. He does not have “MS-13 tattooed onto his knuckles,” this is text overlaid on an existing image.

10. And no, this does not “take, without exaggeration, 200 years.” While he is talking about “trials” here and not simply due process (which I think is very generous to give that point), even trial by jury would not take this long.