By Pavla Wernerová
While the president of the United States can be considered to be the most powerful person in the world, they are still not free to do anything they want. The president is still limited by many factors such as the Congress and the Supreme Court and even by such factors such as public opinion or the media. The role of the president is defined in the Constitution. In spite of that, there are many grey zones where the Constitution does not deal with the issue linked to the presidency in more details. Since crises related to the presidency were usually a result of the lack of specificity in the Constitution, they can be perceived as not only presidential but also constitutional crises. What are the different kinds of constitution crises? Are they any major differences between them? And what are the examples of the constitutional crises linked to the presidency in history and by what were they caused?
The Rights and Limits of the President
Even though the position of the president can be seen as a powerful one, the president is still limited in many ways. Nevertheless, the president assumes several important roles in the US politics, among them the roles of Commander in Chief, chief diplomat, chief executive, the head of State, main legislator, voice of the people and the main judicial officer. Even though these roles are very powerful, the president is still limited when carrying out these roles.
The US political system is based on the system of checks and balances, which is a reference to “the system that the US Constitution set up to ensure that no one branch of government would become too powerful.” The government of the U.S. is “divided into three branches: legislative, executive, and judicial” and “these three branches, while independent, have actions that they can take to ensure that the other two branches are not misusing their power.” The president is a leader of the executive branch. Based on this system, the president is always controlled by other two branches.
When Vice President John Tyler took over the position of the president, “no one was sure if he was the real president or merely the acting president.
The role of the president is established in the Constitution and “all his powers, both positive and negative, duties, as well as rules and regulations related to the presidential office are outlined in the Second Article of the U.S. Constitution” (Šonková 111). The Article II, Section 1 says “The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows” and after that, the Electoral College system is explained. In Article II, Section I there are also mentioned the requirements for the person who wants to assume the role of president. These are that a person has to be a “a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution,” at least thirty-five years old and also has to be a resident in the United States for at least fourteen years. The powers, rules and regulations concerning the role of the president are regulated or amended by the following Amendments to the Constitution: 12th (1804), 20th (1933), 22nd (1951), and 25th (1967)72 (US Constitution).
In spite of these great powers, the president is still limited by many factors, such as “the U.S. Constitution, the U.S. Congress, political parties, bureaucracy in general, individual states’ and local governments, courts, and increasingly – especially since the 1970s onwards – public opinion, media, interest groups, and obviously the time he is in the office as well as information he has at his disposal, together with the global environment” (Šonková 111). From these points, there can be seen that even though the power of the president is huge, they are still not free to do anything they want.
Only after the assassination of the J. F. Kennedy, the amendment had been finally introduced which settled the question of whether the vice president becomes officially the president after the assassination.
Constitutional Crises in History
As Julia Azari, an associate professor of political science at Marquette University (WI, USA), points out there are four types of Constitutional crises. These crises are caused by the facts that “the constitution does not say what to do,” “the Constitution’s meaning is in question,” “the Constitution tells us what to do but it is not politically feasible” or that “institutions themselves fail.” While thorough the history, there can be found many examples in each of these categories, this article will focus on the most important events which significantly influenced the presidency. In the history of the US, many events can be found which radically changed the way the presidency is perceived. Since this topic is so wide, in this article, there are going to be discussed the events which resulted in a change of legislation, events which changed the rules of the other branches of the government or which resulted in a lawsuit against the president.
The Constitution Doesn’t Say What to Do
In her essay focused on the interpretation of the US Constitution, Heather Whipps, an editor of Live Science, mentioned the vagueness of the Constitution. Nevertheless, “this vagueness has one major advantage: It makes an 18th-century document flexible enough to effectively serve a 21st-century society.” In spite of this flexibility, there may arise one serious problem and that is when the Constitution does not specially say what approach should be taken, “such as when William Henry Harrison became the first president to die in office in 1841.” The problem was that “at the time, it wasn’t clear whether the vice president should fully assume the office or just safeguard the role until a new president could somehow be chosen.” When Vice President John Tyler took over the position of the president, “no one was sure if he was the real president or merely the acting president, nor was anyone certain what should happen next. Tyler asserted that he was, in fact, the new president, and since then, vice presidents who have had to step into service as chief executive have been treated as fully legitimate, but early confusion took its toll on the perceived legitimacy of Tyler’s presidency.” Nevertheless, the 25th amendment which officially settled the question was not accepted until 1967. Until then, “informal precedents and practices have filled in many of the gaps in the Constitution’s text over time. When the president was for some reason not able to fulfill his position, the Vice president took over his role and was perceived to be a current president.
The problem of the president not being able to fulfill his role has risen up many times, especially in the events of the assassination of the president. In US history, there have been 4 presidents who have been assassinated during their presidency: Abraham Lincoln (1861-1865), James A. Garfield (March1881- September 1881), William McKinley (1897-1901) and John F. Kennedy (1961-1963). As was mentioned before, even though in the Constitution, there was no mention that the vice President becomes the President in the case of something dire happening to the President (until the introduction of the 25th amendment in 1967), the Vice presidents had always taken the place of the President following an assassination. The case of a presidential assassination could be considered the presidential crisis because in the Constitution, the approach that should be taken had not been settled. Only after the assassination of the J. F. Kennedy, the amendment had been finally introduced which settled the question of whether the vice president becomes officially the president after the assassination. When the amendment was being discussed in Congress, there were two different proposals being considered. The first one was the Keating-Kefauver proposal which “would delegate to Congress the power to determine when a President would be considered disabled, and thus, unable to carry out the responsibilities of the position.” Nevertheless, this proposal was rejected because of the concerns about the “abuse of authority by Congress by giving them such power, and thus, this proposal was rejected.” The second proposal was the Bayh-Celler proposal which “stated that the Vice President would become ‘Acting President’ in the case the President would become disabled. It also included procedures regarding the vacancy of the Vice President office in such a situation.” At the end, the 25th Amendment was based on the Bayh-Celler proposal, even though it was slightly ammended.
Maybe taking into account this event in history, the House of Representatives decided not to get involved in the 2000 presidential election.
“The 25th Amendment, proposed by Congress and ratified by the states in the aftermath of the assassination of President John F. Kennedy, provides the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation.” The length of the presidency had already been limited a few years before by the 22nd Amendment (1951) which stated that “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.” If a Vice President became President “upon the death, resignation or impeachment and conviction of the sitting president”, they could “run for two full terms in their own right if and only if they have served less than two full years of the term of the president they replaced. ”
Taking the 25th Amendment into practice could be seen in the events following the Watergate scandal in the 1970s, “first when Gerald Ford replaced Spiro Agnew as vice president, then when he replaced Richard Nixon as president, and then when Nelson Rockefeller filled the resulting vacancy to become the vice president.” There can be seen that even though the Constitution is perceived as the most important document when it comes to the decisions about what is legally possible and what is not, many events in US history influenced the later amendments because the Constitution in many cases lacked the instructions on what to do (as mentioned above). After the approval of the 25th Amendment, there have been a few other cases when the 25th was taken into practice, such as when presidents needed to get anesthesia for medical reasons and they gave power to their Vice presidents when they were under treatment. Among them, there were for example Ronald Reagan and George H. W. Bush.
The Constitution’s Meaning is in Question. What happens after that?
Two previous cases are not the only ones which can cause a constitutional crisis, another one is the fact that “sometimes the Constitution’s attempt to address an issue is phrased in a way that could allow multiple interpretations, leaving experts disagreeing about what it means and making it difficult or impossible to address a pressing problem.” Even though there can be mentioned several cases which are fitting into this category, probably the most famous one is a crisis connected to impeachment.
Impeachment is defined in Article II, Section 4 where it is stated that “the President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Nevertheless, it is not specifically mentioned anywhere what is meant by “high crimes and misdemeanors”. The vague definition of the reasons for impeachment has arisen as a problem several times. In US history, there have been only two presidents who have been successfully impeached by the House of Representatives, Andrew Johnson and Bill Clinton. Nevertheless, their impeachments were not approved by the Senate. At the same time, “no president has been convicted of the charges filed against him during impeachment proceedings.”
One of the precedents which Donald Trump broke is not releasing his tax returns and he is “the first president in modern times to refuse to do so.”
The first president who was impeached by the House of Representatives was Andrew Johnson who was the 17th president of the United States. His impeachment was based on his violation of “the Tenure of Office Act.” The act “required Senate approval before a president could remove any member of his cabinet who had been confirmed by the upper chamber of Congress.” Johnson “was charged with breaching the Tenure of Office Act after he removed the US secretary of war, Edwin Stanton, from the cabinet.” The problem there was the fact that “Johnson believed the legislation was unconstitutional and wanted it to be legally tried in the courts”. Nevertheless, “instead it was the president, himself, who was brought to trial.” Johnson was impeached by the House of Representatives on “February 24, 1868” and then “the case passed to the Senate.” At the end, “after a two-month trial in the Senate he was acquitted by a margin of 35 guilty to 19 not guilty – one vote short of the two-thirds needed to convict.” As a result, he was “not removed from office and in 1926 the Supreme Court declared that the Tenure of Office Act had been invalid.”
The second president impeached was “Bill Clinton over the extramarital affair he had with White House intern Monica Lewinsky.” On January 26, 1998, “Clinton uttered the now infamous denial: ‘I want to say one thing to the American people; I did not have sexual relations with that woman, Miss Lewinsky.’” In spite of his statement a few months before, on August 17, “he testified before a grand jury – the first time a sitting president had done so – and admitted live on television that he did indeed have an inappropriate relationship with her.” Bill Clinton “was impeached by the House of Representatives on December 19, 1998, on the grounds of perjury and obstruction of justice.” There were two other charges, “a second perjury charge and a charge of abuse of power,” but they “failed to pass in the House.” Following that, “the case then went to trial in the Senate, where, on February 12, 1999, he was acquitted. A two-thirds vote – 67 senators – were required to remove him from office. In the end, 50 voted to convict him for obstruction of justice and 45 found him guilty of perjury. No Democrats voted to convict him on either charge.”
There is another famous case which is worth mentioning even though the situation did not result in impeachment: the Watergate scandal. Richard Nixon was one of the lead figures in the Watergate scandal “in which his administration had tried to cover up its involvement in the break in at the Democratic National Committee headquarters in Washington.” After he had been convicted of being involved in the scandal, “impeachment proceedings formally began on February 6, 1974, and, at the end of July, three articles of impeachment against Nixon were approved: for obstruction of justice, abuse of power, and contempt of Congress.” Nevertheless, “the trial never reached the House” because “Nixon resigned on August 9, 1974, and handed the presidency over to Gerald Ford.” In this case, there is another fact worth mentioning. When Gerald Ford became the 38th president of the United States, at the same time he “became the country’s only chief executive who was not elected as either president or vice president.” Before he became the president, he “served in Congress for 25 years.” In 1965, “he won the role of House minority leader” and he “held this position until Nixon named him vice president in 1973.” He took the position of vice president after Spiro T. Agnew “was forced to resign from office in disgrace” because of his many scandals. After Nixon resigned from office, Gerald Ford became the 38th president of the U.S. For these reasons, he was the first (and so far the only one) “country’s [ . . . ] chief executive who was not elected as either president or vice president.”
The Constitution Tells Us What to Do, but It’s Not Politically Feasible
One of the examples which fit into this category is when the “presidential elections produce contested and confusing results.” The 2000 presidential election can be seen as a clear example where even though the Constitution offered the solution, Congress did not use it.
The problem in the 2000 presidential election was “when George W. Bush and Al Gore were separated by just a few hundred votes in Florida, the tipping-point state whose electoral votes would determine the winner.” According to the first numbers, “on election day, Gore won the popular vote by over half a million votes.” Al Gore “garnered 255 electoral votes to Bush’s 246, but neither candidate won the 270 electoral votes necessary for victory.” The results of the election were in some states “were too close to call but it was Florida, with its 25 electoral votes, on which the outcome of the election hinged.” First, “based on exit polls in Florida, the news media declared Gore the winner, but as the actual votes were tallied, Bush appeared to command the lead.” Later, “when 85 percent of the vote had been counted, news networks declared Bush the winner, though election results in a few heavily Democratic counties had yet to be tallied.” When the result in Florida was announced and it became obvious how closely George W. Bush won, several disputes erupted. The first reason was that “Florida state election law required a mandatory statewide machine recount” and when “by November 10 the machine recount was complete, [ . . . ] Bush’s lead stood at 327 votes out of six million cast.” Also quite a strong controversy was caused by paper ballots: “County officials tried to discern voter intent through a cloud of ‘hanging chads’ (incompletely punched paper ballots) and ‘pregnant chads’ (paper ballots that were dimpled, but not pierced, during the voting process), as well as ‘overvotes’ (ballots that recorded multiple votes for the same office) and ‘undervotes’ (ballots that recorded no vote for a given office).” The strongest controversy rose in Palm Beach county where the “the so-called butterfly ballot design” was used. This design “caused confusion among some Gore voters” and many of them were prompted to “inadvertently cast their votes for third-party candidate Pat Buchanan, who received some 3,400 (some 20 percent of his total votes statewide).” At the end of November, “the Florida state canvassing board certified Bush the winner by 537 votes.” Nevertheless, it still was not the end because “the Florida Supreme Court decided (4–3) to order a statewide manual recount of the approximately 45,000 undervotes—ballots that machines recorded as not clearly expressing a presidential vote—and accepted some previously uncertified results in both Miami-Dade and Palm Beach counties, reducing Bush’s lead to a mere 154 votes.”
Even though he put his businesses in a trust, Trump is still financially tied to many of them and as many people point out, he “appears to be monetising the presidency.”
The Bush campaign became worried about the recounts of the votes since it could completely change the result of the election, they “quickly filed an appeal with the U.S. Supreme Court, asking it to delay the recounts until it could hear the case; a stay was issued by the court on December 9.” After a few days, it was concluded “that a fair statewide recount could not be performed in time to meet the December 18 deadline for certifying the state’s electors” and as a result, “the court issued a controversial 5–4 decision” (the case which was called Bush v. Gore ) “to reverse the Florida Supreme Court’s recount order, effectively awarding the presidency to Bush.” Thanks to winning Florida, “Bush narrowly won the electoral vote over Gore by 271 to 266—only 1 more than the required 270 (one Gore elector abstained).” In spite of that, Gore “won the popular vote over Bush by some 500,000 votes,” which was “the first inversion of the electoral and popular vote since 1888. (1)” After the Supreme Court “ended the dispute in Bush’s favor”, Al Gore “gave a televised statement announcing that while he disagreed with the decision, he would accept it.” As Julia Azari points out, “in this case, the court arguably created a constitutional crisis by stepping in where it wasn’t technically needed, but Gore’s acceptance of the decision defused the situation.” The situation may have been much worse: “had Gore refused to abide by the decision, the crisis could have become far more serious.”
When the result of the presidential election is unclear, there are several solutions to the problem within the Constitution. In the 2000 presidential election, “Congress could have decided which of Florida’s electors to recognize, or Congress could have determined that neither candidate had achieved a majority in the Electoral College and let the House of Representatives decide on a president (per the process spelled out in the 12th Amendment).” Even though these solutions would certainly be constitutional, they would create “a significant legitimacy crisis for the new president.” This problem became obvious the last time the House of Representatives chose a president in 1824. The decision of the House of Representatives was “widely decried as corrupt and created a massive backlash against John Quincy Adams’ administration.” Maybe taking into account this event in history, the House of Representatives decided not to get involved in the 2000 presidential election. Politicians can often make decisions based on the experience from the past events in the history.
Institutions Themselves Fail
As Jack Pinkowski mentions, “when James Madison wrote the U.S. Constitution in 1787 he intended the system of Checks and Balances to operate in such a way that by separating the powers of different institutions “tyranny of the majority” would be countered. The problem is that the system of checks and balances doo not always work like that. “Due to partisan polarization, individual corruption, or any number of other reasons, sometimes the political institutions in these arrangements fail” and they send “the governmental system into a crisis.” Examples of this type of crisis can be seen in recent events happening during the Trump administration. In January, “Trump signed an executive order barring people from seven majority-Muslim countries from entering the United States,” even though most of them were legal permanent residents of the U.S. After Trump had signed his executive order, many people coming from the seven countries mentioned in the order were detained by the Customs and Border Protection agency after they arrived in the U.S. Soon after that, “two federal judges, Ann Donnelly of the Eastern District of New York and Leonie Brinkema of the Eastern District of Virginia” made rulings that “the travelers detained by Customs and Border Protection (CBP) had a right to see lawyers.” The famous example which happened at Washington Dulles International Airport showed that this could lead to a constitutional crisis. Even though the detainees had the right to see a lawyer (many of them were waiting at the airport for their would-be clients), they were not allowed to. Most of the people, even those that were disabled, were detained for several hours and they were not cared for properly. The problem even went so far that New Jersey Senator Cory Booker showed up at the airport. He tried to negotiate with the CBP officials and even though he was not very successful, he made a speech where he mentioned that “it’s a Constitutional crisis, where the executive branch is not abiding by the law.” In this case, there could be clearly seen that the institutions were not working: “an executive agency was defying the ruling of a federal judge, and a U.S. senator was trying—unsuccessfully—to make that agency comply.” Even though in the end, all of the detainees at the airport were released, the issue showed what can happen when the different branches of power do not comply with each other.
Trump v. Constitution
Even though it is hard to judge Donald Trump since he has not been the president for very long, he has already caused at least one of the several types of constitutional crisis and has also broken many precedents which were common for the previous presidents of the U.S., even though they were not officially settled in the Constitution.
One of the precedents which Donald Trump broke is not releasing his tax returns and he is “the first president in modern times to refuse to do so.” Now and even before becoming president, he has always given reasons why he cannot release them, such as for example that “his most recent return is under audit” and “when that audit concludes, he will release the return” (even though for example Richard Nixon released his tax returns even during an audit). In spite of that, he still has not released them, which may be a problem since he is now discussing a tax-reform proposal and without releasing his tax returns, it may not be clear how much advantage he will gain from that.
Another example when president Trump has been breaking precedents concerns his Twitter account. Even though his Twitter account has been infamous for “blasting out thousands of tweets directly to his millions of followers,” in August, he retweeted “a Fox News story claiming US satellites detected North Korea moving anti-ship cruise missiles to a patrol boat.” Only a few hours after that, “US Ambassador to the United Nations Nikki Haley indicated that the information in the report is classified and was leaked.” Trump’s Twitter account is not the only place where he shares secret information. In May, he was accused of “reportedly sharing ‘codeword classified’ information with the Russian ambassador.” The information which was “related to the use of laptops on aircraft” was “understood to have been passed to the Americans by an ally who had apparently chosen not to share it with Moscow.” To defend himself, Trump said that “he ‘had the absolute right’ to tell the Russians ‘acts pertaining to terrorism and airline safety.’” Nevertheless, Trump’s acts are probably not unconstitutional because under the Constitution “Mr Trump would have to be helping a country that the US is at war with in order for it to be considered treason.” In the Constitution, “Article 3, Section 3 [ . . . ] states: ‘Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.’” Since Donald Trump “would have to be actively ‘levying war’ or providing ‘aid and comfort’ to an enemy in order to build a treason case”, it is hard to accuse him of anything.
Apart from the issues mentioned above concerning president Trump, there are a few other issues which, even though are not unconstitutional, may not be perceived as completely ethical. One of them is concerning Jared Kushner, son-in-law of president Donald Trump who “has occasionally used a private email account for correspondence with fellow administration officials.” The irony in this issue can be seen in the fact that “during his campaign, Trump repeatedly criticized Democratic opponent Hillary Clinton for her use of a private email server to send and receive email during her time as secretary of state.”
Another important issue concerns Trump’s businesses and the potential conflict of interest which may arise from that. In the past, it was common that US Government Officials placed their assets in blind trust so that it does not pose a potential conflict of interest. In spite of that, Donald Trump announced last year that his children would run his businesses via blind trust, which can be seen a contradiction because his children can still influence the president’s decisions. Several members of his family are working now as advisors in the White House which provides ground for a strong conflict of interest. Even though he put his businesses in a trust, Trump is still financially tied to many of them and as many people point out, he “appears to be monetising the presidency.” One of the examples can be seen in the June 28 donor-event which was focused on fundraising for Trump’s 2020 campaign and which took place in one of his hotels. This is not the only example where Trump used one of his businesses for organizing events during his presidency. There can be seen that even though before becoming the president, Donald Trump mentioned that he would put his businesses in the blind trust, it did not prevent him from using his businesses for presidential purposes.
Even though Donald Trump has not caused anything so far that would lead him to impeachment, he has done many things which can only add up to a presidential and constitutional crisis. Donald Trump still has more than three years of his presidency to go, but anything can happen during the period of a presidency that can cause a constitution crisis.
1 During the 1888 presidential election, “Republican Benjamin Harrison defeated Democratic incumbent Grover Cleveland, winning in the electoral college 233–168 despite losing the popular vote.” Grover Cleveland “garnered fmore than 100,000 more votes” than Benjamin Harrison.