“When people elected to uphold the rule of law and to follow the Constitution openly defy the plain meaning of laws, then yes, we’re in a constitutional crisis,” says constitutional law expert Jessica Silbey, a professor of law at Boston University School of Law, and the Honorable Frank R. Kenison Distinguished Scholar in Law. Photo by chas53/iStock

Government & Law

Is the United States in a Constitutional Crisis?

Yes, says BU LAW Professor Jessica Silbey, but it’s up to elected representatives and individual citizens—not the courts—to save democracy

In the month since President Donald Trump took office, he’s signed more than 70 executive orders, many of them designed to push the limits of the United States Constitution—or exceed them altogether. In their wake, a flurry of high-profile lawsuits challenging many of those orders—filed by civil rights organizations, unions, state attorneys general, and others—is making its way through the federal court system. 

As of February 19, 28 of those lawsuits have at least temporarily paused some of the president’s initiatives. The Trump administration filed its first appeal to the Supreme Court over Presidents Day weekend.

Trying to keep up with the breakneck speed of this administration’s actions and the resulting backlash is head-spinning work. But taken as a whole, Trump’s actions demonstrate a new theory of executive power—one that he neatly summed up in a recent post on X and Truth Social: “He who saves his Country does not violate any Law.”

But what does this all mean? Does it represent the jockeying checks and balances of the US government—as Senate Judiciary Chairman Chuck Grassley (R-Iowa) described it? Or are we seeing a breakdown of what the US Constitution sets forth as independent, coequal branches of government?

“When people elected to uphold the rule of law and to follow the Constitution openly defy the plain meaning of laws, then yes, we’re in a constitutional crisis,” says Jessica Silbey, a professor of law at Boston University School of Law, a constitutional law expert, and the Honorable Frank R. Kenison Distinguished Scholar in Law. “Donald Trump is rearranging the constitutional structure of government through mechanisms that do not provide for any accountability or transparency, which defies our democratic norms and commitments. He’s openly resisting the plain meaning of laws that we have accepted for a long time.”

Among the numerous orders Trump signed in the last month were attempts to roll back birthright citizenship, freeze a whole range of federal spending, and shut down the US Agency for International Development (USAID). 

All of these actions have been challenged in courts. 

By mid-February, four federal judges blocked Trump’s order to rescind birthright citizenship. In his 31-page ruling on February 13, Boston-based US District Judge Leo Sorokin wrote that the “Constitution confers birthright citizenship broadly, including to persons within the categories described” in the president’s executive order. Senior US District Judge John C. Coughenour was even more forthright in his restraining order, writing of Trump’s executive order: “This is a blatantly unconstitutional order.”

Trump’s attempt to freeze as much as $3 trillion in federal funding—detailed in a memo that was quickly rescinded—has also stalled in at least two cases. Federal judges issued a temporary restraining order in late January blocking the administration’s efforts to freeze payments for grants and other programs. More recently, US District Judge John McConnell, Jr., in Rhode Island, found that the administration has continued to freeze the funding, despite the restraining order. McConnell ruled that the administration should “immediately restore funding,” adding that the freeze was “likely unconstitutional and has caused and continues to cause irreparable harm to a vast portion of this country.”

Another federal judge halted part of the administration’s plan to shut down USAID. Judge Carl Nichols of the US District Court for the District of Columbia, a 2019 Trump appointee, issued a restraining order in early February pausing the imminent administrative leave of 2,200 USAID employees and a plan to withdraw nearly all of the agency’s overseas workers within 30 days. He also ordered the temporary reinstatement of 500 agency employees already on administrative leave.

Trump also appears to have given free rein to an unelected billionaire, Elon Musk, to send “into the wood chipper” any part of the federal government Musk sees as “inefficient.” In practice, this has meant shutting off federal funding that Congress already approved and firing thousands of government employees who should be subject to civil service protections. Two lawsuits, filed in Washington, D.C., and Maryland, contend that Musk is operating unconstitutionally. 

The legislative branch could assert its own authority to dictate how federal money is spent or decide to censure a president that openly defies the laws it passed. But so far, the razor-thin Republican majorities in both houses of Congress seem content to let Trump run. 

That might seem like it leaves the judicial branch to act as backstop. But, Silbey warns, the courts don’t exist to save the day; they were never designed to do that. 

“The courts have never, ever been the branch of government that saves democracy. Ever. It is really misleading to think about the courts as a savior. The courts’ jobs, generally, are to uphold the rule of law, constitutional principles of separation of power, and individual rights so that democracy can work,” she says. 

Historically, presidents have obeyed court decisions, and in interviews, Trump has also said that he would. But should a president decide not to (as Vice President JD Vance and Musk have suggested in separate posts on X), there’s very little the judicial branch can do. The United States Marshals Service—the enforcement arm of the federal court system—is run by the US Department of Justice, which is a function of the executive branch. The DOJ is headed by a presidential appointee. 

If a president were to openly disobey a court decision, it could be an impeachable offense, but it would be up to Congress to act—and up to the people to demand that it does. 

“The courts preserve the basic structure of democracy so that we, the voters, and our elected representatives can argue and debate and hammer out the specifics,” Silbey says. “They’re not going to save us if we don’t do the hard work of preserving democracy.” 

And by “we,” Silbey means state government, local government, individual citizens. 

“It’s not the government against us. We, in our states, in our local municipalities, and as federal citizens—we make the government. And so if we don’t vote, if we don’t agitate, if we don’t demand certain things, if we don’t resist or speak up in our organizations, in our towns, then we’ve conceded these things,” she says.

The history of the United States is one of ups and downs. Silbey—who, at the time of the interview with BU Today, had just finished teaching a unit on the Civil War—takes the long view. 

“We have seen an ebb and flow in the promise of what an inclusive, multiracial democracy is. And it is hard. It is really hard,” she says. “But the idea that we should be waiting for the courts to help us isn’t going to help. Yes, I want the courts to uphold the rule of law. I want them to say when the president or the executive branch has violated the Constitution or their oath to take care that the laws are faithfully executed. Yes, we do want that, but that’s not going to do any good if the people don’t care.”