Is Anyone Ready For This?

A few days ago I wrote a piece about how Trump’s defiance of the courts is often murky. It’s not that Trump would necessarily stand up and publicly refuse to follow a court order — instead, he was finding subtler ways to test the limits of judicial power. The point was that a constitutional crisis isn’t always as obvious as you might want it to be.

But then again, sometimes it’s very obvious: this past weekend the administration ignored a federal judge outright. It wasn’t the first time they did it, but it was the first time they did it in plain sight.

The basic story is this: a few days ago, a federal judge told the Trump administration to turn a plane carrying deportees around. They did not. They claimed that when the order was issued, the plane was over international waters, where the President’s authority supersedes the judge’s (that’s not the actual law, that’s just what the administration is arguing). In other words, they’re admitting that they disobeyed the judge, but they’re claiming that it doesn’t matter because the judge was exceeding his authority.

This is what a constitutional crisis looks like: a judge is validly exercising his power, and the President is denying that he has it. Finally, we can stop arguing about whether there’s a crisis, and start acting as though we’re in one. Right?

The New York Times ran an article about all of this headlined “Fears of Constitutional Crisis Grow as Administration Rebuffs Judge.” If you ask a professional journalist, nothing bad is ever actually happening, it’s just that “fears” are “growing.” This sort of framing relieves them of having to analyze whether something really is happening and allows them to safely report that some folks are concerned. You’ll never get four Pinocchios for running that story – your editor can rest easy.

Since then, news coverage has degraded further. Trump and various apparatchiks have called for the impeachment of Judge Boasberg, who ordered the plane turned around. He didn’t actually prevent them from deporting hundreds of people without due process, but his belief that he could was apparently an insult too great to bear. The ordeal resulted in Chief Justice John Roberts issuing a rare public statement, condemning the calls for impeachment.

This has all caused the Times and other outlets to turn their attention to the political disputes resulting from Trump’s defiance of the courts, rather than the defiance itself. So you get headlines like “Judge in Deportation Case Draws Ire of Republicans as White House Pushes Back.” The issue gets framed as a partisan spat; horse race coverage for a constitutional crisis.

The only people handling this worse than the media are the Democrats. Last night, Chuck Schumer appeared on Chris Hayes’s MSNBC show. Schumer is on a bit of a humiliation tour, fresh off of caving on the budget fight. He sputtered his way through the interview, partially because he didn’t have good answers for basic questions and partially because, frankly, he doesn’t seem to be very mentally acute.

When asked if our democracy is at risk, Schumer gave a rambling answer implying that if Trump defied the Supreme Court, there would be a strong public reaction against him. “The people,” Schumer says, “will have to rise up.” This might be the most pathetic conceivable response. For months, everyone has been wringing their hands at the prospect that Trump might defy the courts. Now that he undeniably has, Schumer shifts the goalposts: in order for us to be concerned, Trump must defy the Supreme Court. 

The New York Times morning newsletter echoed the sentiment, saying that “America may not be in a crisis yet…The administration has not defied the Supreme Court – only lower court orders[.]” The distinction doesn’t make legal or practical sense. Legally, the Supreme Court and lower federal courts derive their power from the same place: Article III of the Constitution. Trump’s usurpation of lower court power is just as unconstitutional as it would be directed at the Supreme Court. Practically speaking, lower courts do the vast majority of the work in our federal legal system – only a handful of cases trickle up to the Supreme Court each year. If we abide by the distinction being offered up by Schumer and the Times, Trump could reject the authority of the judiciary almost entirely, only pausing to occasionally give the Supreme Court their due respect.

Beyond that, Schumer appears to be fully abdicating his responsibility as a political leader. He expressly says that instead of sounding the alarm now, he is waiting for a groundswell of public outrage, which the Democrats will then latch onto. The onus is on the public, not the Democrats, to take action. Why the public would be outraged when even the opposition party’s leadership doesn’t seem to be too concerned is anyone’s guess.

The media and the Democrats are suffering from different manifestations of the same problem. If they were to acknowledge the gravity of the political moment, they might be compelled to rise to meet it. If they were to acknowledge that we are in a constitutional crisis, it might obligate them to something more than business as usual. 

Neither institution is built for this. The modern Democratic Party is a big tent operation, revolving around a mythical median voter and designed to engage in ticky tack compromises for all eternity. Mainstream journalism, on the other hand, studiously avoids doing anything that might be seen as taking a position. It’s not proper journalism to say something sensational, even if something sensational is happening; everything must be muted and subdued until an air of professionalism runs through it. The journalist’s ideals must be invisible. Even when the coverage properly expresses alarm, it must be balanced out with qualifications and reassurances.

It seems that our institutions are waiting for a tipping point. They believe that eventually this will all boil over, at which point resistance to Trump will flourish and wrongs will be made right. They also believe that this can happen organically, without the prompting of the media or political leaders. A powerful display of righteous courage by everyone other than them.