18th February 2025
How can we make sense, from a constitutionalist perspective, of what is currently going on in the United States?
Perhaps it cannot make sense, perhaps it is senseless – and so there is nothing more to be said.
Or perhaps one day we can look back at what is happening, with glorious hindsight, and see that it makes perfect sense.
Perhaps.
This post, however, is an attempt to make some sense of what is happening, based on currently available information.
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First, there is not – yet – a constitutional crisis in the United States, though it seems from the outside that the United States is very close to one.
Yes, there is conflict – but constitutions exist to regulate conflict. It is only a constitutional crisis when a constitution fails to resolve that conflict: when tensions harden to contradictions, which in turn can even prompt civil discontent and even violence.
And yes, there seems to be defiance by the executive of court orders, though the picture here is not clear. There are court skirmishes and filed appeals, and it may be that the apparent defiance is bluster and not reality. It is too soon to tell.
But if the executive branch deliberately and openly (and brazenly) defy the orders of a federal court then, yes, that would be a crisis. It would be a serious contradiction the outcome of which is not clear. Such a crisis may not lead to civil strife, but it would still be an unstable, unpredictable situation.
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Second, it would appear that an attempt is being made to avoid Musk having any legal responsibility for what this DOGE entity is doing:
It will be (grimly) fascinating to see how this somewhat desperate tactic works out in court.
One would hope that such a tactic should fail before any objective judge looking at substance of matter, but it may work before partisan Trump appointed judges.
And we should remember that Musk is no legal tactician or strategist, let alone 4D chess player when it comes to the courts.
He got himself in legal knots in his attempt to withdraw from buying Twitter, which he was then legally obliged to purchase:
And he could not even arrange his own pay-rise in the company he actually controls:
This is not masterful legal strategy or tactics, just loudly confident, well-resourced legal blundering.
Curiously Trump is a lot more legally cautious than Musk, and Trump is instinctively good at avoiding (evading) legal responsibility under a general air of plausible deniability.
Yes, he has not always succeeded – and he has criminal and civil findings against him – but these are very few compared to the sheer number of legal threats he has faced in his political and business careers.
Think about how he managed to get out of almost all the cases against him about 6 January 2021 – from impeachments to federal prosecutions.
Think about how he has always avoided personal bankruptcy – despite his many business failures.
One suspects Trump would never have ended up having to buy Twitter against his will because of legal blunders.
This reckless/cautious distinction is one key difference between Musk and Trump.
One suspect that after all this, Trump will deftly survive/avoid the legal consequences of DOGE shenanigans, and Musk and his cronies will not.
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Third, the three key legal protections for Trump’s administration may not apply to the civil (not criminal) liability that may be triggered by what DOGE is doing:
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- Presidential pardons do not apply to civil liability – if Musk and others involved with DOGE are sued, no presidential pardon will help them.
- The recent Supreme Court ruling giving the president a certain immunity from criminal prosecution similarly does not apply to civil matters.
- Control of the Department of Justice will not help when matters fall to be determined by the federal courts – not all of which are (yet) dominated by Trump appointees.
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The civil exposure – from being sued rather than being prosecuted – of those involved in DOGE would seem eye-wateringly high.
All sorts of contractual, proprietary, data and other rights of individuals appear to have been freely disregarded.
And on the face of it, the presidential machine offers no protection from suit from those whose rights have been breached.
No wonder Musk and others are now trying to distance themselves from legal responsibility for DOGE.
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And fourth, and to return to an old theme of this blog: the legal form of a constitution – codified, “written” or otherwise – offers no protection in and of itself when key political actors care not for constitutionalism.
(Constitutionalism is when those with political power accord with organising rules and principles despite partisan or personal advantage.)
There is no formal impediment to determined unconstitutional behaviour.
The real problem is how one gets politicians – and voters – to care about constitutionalism.
And that is a problem which has no obvious answer.
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A really welcome counter to the near panic which I and many others have been experiencing as a result of ‘recent events’.
A lot seems to hang on the distinction between criminal and civil liability in the US system. As a complete outsider I have no idea whether the two systems are separate at every level (benches, advocates) or whether both are equally under the ultimate control of the Justice Department. It seems this could be important?
I feel strangely comforted by this post. Perhaps somebody has been having a little word with Musk, and perhaps he may back off a little bit now. The scope for conflicts of interest is just huge- it is surely inconceivable that nobody will sue over that? And the anecdotal evidence of discontent from ordinary people, many of them Trump voters, as they lose their jobs can’t be totally ignored. Very shrewd analysis, as always.
I don’t think he’s going to back off unless really forced to. Musk has plenty of obviously massive conflicts of interest, as does trunp. One wants to shut down NASA as it competes with his space launch business, the other wants a massive genocide and ethnic cleansing to build another shoddy resort where he’ll stuff the contractors again, and get what he pays for.
‘Where ever law ends tyranny begins’.
John Locke always wrote good sense.
about 8 planes have crashed in the last month or two since they defunded or sacked a load of aviation people, FAA or something and another one, whilst from a legal point of view it might not be a crisis yet I think there are going to be all sorts of situations like this building which’ll have a combined effect on the smooth running of things…
I am not sure there is liability, eye-watering or otherwise, for Musk and DOGE. Sovereign immunity will apply, and where it has been waived by the Federal Tort Claims Act the liable party will be the United States not the federal “employees” (which will include presidential advisors), who are immune under the Westfall Act. Punitive damages are not available under the FTCA, and damages for constitutional violations are largely limited to procedural due process causes.
Musk’s desire to not be named as DOGE Administrator results from the procedural legal processes that would be triggered, in terms of disclosures and vetting, not from fear of being sued personally.
I always have difficulty with comments that start “not sure” as the commenter invariably proceeds to show they are very sure. I have no idea why commenters use this insincere formulation. Why should we trust anything else in comment, after such an insincere beginning?
Usually I would not publish such a comment, but this seems informative.
Here in the UK the last Parliament was very keen on creating superfluous new offences (e.g. assaulting a shop worker) and extending sentences for certain crimes without ever addressing the actual problem underlying the rise in these crimes, ie a lack of enforcement. Laws against shoplifting and sedition (see January 6) have to be enforced by someone or they may as well not exist. What Musk/Trump is/are doing is straightforwardly illegal – Congress founded USAID and only Congress can defund and abolish it. But if Congress refuses to enforce its own rights, which is currently the case, then the law is being broken in plain sight, by the government that is supposed to uphold and enforce it. That sounds like a constitutional crisis to me. But then there is no objective definition of a crisis… and it wouldn’t make much difference if there were.
Last night, before I went to sleep, I asked myself whether democracy is dead in the USA. I woke up today with an answer in my mind: the USA has Schrödinger’s Democracy. We might look back at this moment and say that democracy was already gone, or we might look back and say that at this moment there were a lot of false fears because people took bluster as a statement of intent. To describe the USA as in a super-position implies there will be a wave function collapse, a moment when we open the box and look at the cat.
I read this blog, and wondered whether we have Schrödinger’s constitutional crisis, but I think we are approaching the same issue from different angles. A constitutional crisis, if it comes, will be a wave-function collapse, a moment when we know whether American democracy is alive or dead, a moment when we can know whether Trump’s statements are bluffs or revolutionary declarations.
The constitutional crisis between the judiciary and executive branches isn’t yet plain – although I don’t know how any order will be enforced. But there’s an ongoing crisis in the legislative branch, since it is refusing to do much of its oversight and accountability job and isn’t even insisting on its own prerogatives, as it allows the executive to usurp those prerogatives.
So yes, there is a constitutional crisis at hand already.
I don’t see that in itself as a crisis – there are weak presidencies and weak legislatures from time to time.
Constitution’s ( whose ever they are and in which country) appear to be fairly flexible constructs – or at least they are in recent year’s in different counties.
But let’s be honest – they do flex and in the US they flex at the behest of the Supreme Court given its interpretation of US constitution at a point in time. Given too, how the US Supreme Court appoints its Justices – the court by almost definition is a Political Court.
The ECJ /CJEU is both a Constitutional and Political Court – it upholds the Treaties of the EU ( TEU & TFEU) – it pretty much interprets EU law to suit itself – which itself is a political act.
We in the UK have the (in)famous unwritten constitution which dictates that we have what we call ‘ representative democracy ‘ – the fact that we now have more of what Lord Hailsham called an ‘elective dictatorship’ is because only 20% of voter’s actually voted for this Starmer led government with its so called loveless majority – the good news is that our constitution allows and accommodates such counter intuitive situations.
Thus many constitutions enable significant flexibility until such time that they don’t and they break.
It’s interesting to observe what’s happening in the world today & especially in the EU were populists in Germany & France allegedly are challenging both the status quo and will, eventually, if they get into power, change the constitutions of their respective countries.
Whilst this might not be liked by the current powers that be, for obvious reasons – it does kind of demonstrate that constitutions can’t last for ever & will tend to flex or be renewed by the political class at the time.
Trump and his lot seem not to be waiting for anything or anyone – this is why it so worrying for many of us.