Making sense of what is happening in the United States
Why there is perhaps not a constitutional crisis - yet.
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:
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.
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.
Trump is running a regime of terror. He’s watched Putin. ‘Oppose me and see what will happen.” The billionaires are scared and brought into line; next the judges? If the judges stand, who will enforce? - and how? After that it’s down to the people.
If George III had tried to do what Trump has done or claims to have done that would have been a major British historical crisis. In this sense this is a crisis for the American Constitution, if not yet a constitutional crisis.