Does Comey's Dismissal Fit the Definition of a Constitutional Crisis?

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Has the firing of James Comey precipitated a constitutional crisis? The day after the firing, law professors began a vigorous debate. At Politico, the ACLU’s legal director, David Cole, said that a constitutional crisis is at hand because “Anytime a sitting president fires the person responsible for investigating his campaigns potential criminal activities, it is a matter of grave public concern. When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it’s a constitutional crisis.”

In the same symposium, Josh Blackman of the South Texas College of Law disagreed, arguing that “under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.” In a follow-up podcast debate, Cole argued that a constitutional crisis occurs any time the presidents attempts to subvert a basic constitutional norm, such as the rule of law; Blackman countered that to qualify as a constitutional crisis, the president’s actions have to violate the Constitution itself.

That lack of consensus reflects the difficulty of defining what qualifies as constitutional crisis in the first place, and whether it should be defined narrowly or broadly. But the most convincing definitions tend to be narrow, and under all of them, America is not yet in a constitutional crisis. Whether one materializes depends on what President Trump does next.

As the constitutional scholars Jack Balkin and Sanford Levinson point out in their 2008 article on constitutional crises, the “language of crisis,” has recurred since the ratification of the Constitution, but the phrase “constitutional crisis” has no fixed meaning. 




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