Yes, We are Kind of Having a Constitutional Crisis

Rational bureaucratic systems tend to work well until actors refuse to play by the established rules of the bureaucracy. Students of Public Administration likely have read the case “How Kristin Died,” which details exactly how bureaucracy can fail despite the good intentions and competence of those operating within complex systems. In the case-study a known dangerous domestic abuser eventually murders his ex-girlfriend despite the fact that the system was dealing with the situation as it knew how.   The problem was the criminal did not accept nor play by the rational rules of society.

We are seeing something similar happening in the executive branch today. The U.S. government is a complex rational bureaucratic system that moves slow (at times frustratingly slow) by its very design. The president is demonstrating, through his actions and statements, that he does not accept the rational bureaucratic premise of our system. His refusal to state he would accept the results of the elections, his false statements about being bugged, his relentless attacks on the media, and his consistent lying to the American people about things both trivial and serious all demonstrate this. But the treatment of James Comey crosses yet another line. The firing, the request of a loyalty oath, and now the public twitter threat are all remarkable actions. One justification I have heard, that because he is not a career politician he does not see what the big deal is and was not prepared for the backlash, is ridiculous. Being in the private sector does not make you stupid. Unless he is completely incompetent, he knew the optics of firing the FBI director.

The more likely explanation is that he just does not care. And this, in my opinion, is why nobody quite knows how to handle Trump. When the media catches him in a lie, Trump just doubles down. The media for their part do what they know how to do, cover a story and bring in commentators on both sides. Congressional Republicans do what they know how to do, push the Republican agenda and defend the new president. The Democrats do what they do as the opposition party – throw bombs. The American people do what we do best, complain and watch, but assume we will figure it out because we are the United States and that is what we do.

But I for one am worried. This is something I have not seen before. Our institutions are fragile. They are dependent on the willingness of stakeholders and decision-makers to abide by institutional authority and accept institutional norms. What happens when the head of the executive branch knowingly and willingly flaunts our system’s norms? Consider what Trump did this week. He fired the head of the FBI, and then directed his spokespeople to lie to the American people about the reason why. Now he is publicly threatening Comey. Trump is playing a very different game by very different rules than those charged with holding the executive branch accountable, i.e. the media, the courts, congress, and citizens.

So yes, we are kind of having a constitutional crisis. The traditional checks on presidential power are being rejected by the president and nobody quite knows what to do about it. What I do know is that the more Trump keeps getting away with the discarding of institutional norms and limits, the more he will test them. It is happening gradually, but we are at risk of the U.S. system becoming something very different and in my opinion very scary. I am being a bit hyperbolical, but it is much easier to stop the slide away from constitutional norms early in the process. But how? I think the key is Paul Ryan and Congressional Republicans.   They have the power to break from their traditional role of loyalty to the president and become the greatest check on his power. It starts with a public denouncement of his actions and statements. Right now I am afraid they are just trying to manage something that is unmanageable.


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