Each week, I take time from my day job as a lawyer to answer your questions and keep you informed about the latest in the fight for democracy. If you have a question for me, make sure to submit it for the next edition!
Eight months into Donald Trump’s second term, his attacks on democracy and the rule of law are growing every day. While Republicans in Congress stand by and do nothing, those of us in the pro-democracy camp are left to shoulder the increasing burden of remaining vigilant and taking action.
This week, you asked several important questions. From explaining Unitary Executive Theory to the definition of a Constitutional Crisis — and the bigger question of whether we’re in one — I’m here to help you navigate these unprecedented times and understand how we can fight this attack on our country.
Q: I have only heard a couple of individuals speak about the Supreme Court and Unitary Executive Theory. Will you please share what you know about our current conservative Supreme Court justices, especially Chief Justice Roberts, and their support of Unitary Executive Theory?
— Georgia
A: Advocates of the Unitary Executive Theory assert that all powers of the executive branch flow directly from the president and thus the president has sole and complete authority over the executive branch. This means that he can hire or fire anyone in the executive branch for any reason. It also means that independent agencies are not, in fact, independent of the president’s directives. Most importantly, it allows the Department of Justice to operate at his sole discretion.
As Donald Trump reaches for more power, the Unitary Executive Theory has popped up as a justification for his actions — from firing officials without cause to ordering pauses on funding. Trump is even dictating who should be criminally prosecuted.
As you said, a majority of the Roberts Court has embraced the Unitary Executive Theory — without almost any limitations. This will throw us into a crisis that will put our democracy at risk.
Q: Can an individual bring a civil rights suit against Trump and his administration for his attacks on the media, lawyers, universities and our freedom of speech and their RICO-like tactics?
— Anonymous
A: In some instances, yes. But there are several important challenges and limitations. First, plaintiffs need to have standing to sue — meaning they have personally suffered a concrete harm that can be redressed via the courts. Second, they must be able to prove that the conduct violates an existing federal law. While there are federal civil rights lawsuits, they are specific in what they cover and who can enforce them.
Finally, they must be willing to bring the lawsuit and see it through. This is where too many legacy institutions are failing. The law firms that sued the Trump administration won, but only a handful were willing to sue. The universities that litigated have largely prevailed, but too many would rather settle. Sadly, the media outlets have been the most afraid of standing up for their rights and those of their consumers.
Until Trump sees a willingness for these institutions to use the courts to protect their rights, I fear the attack on civil rights will only grow.
Q: Republicans in Indiana, Missouri, and Florida are talking about redrawing maps to gerrymander their states in favor of the GOP. What can be, or IS being, done to fight this?
— Betsy
A: Lawsuits have already been filed to challenge the gerrymandered maps in Texas and Missouri, and more will follow. We are watching Florida, Indiana, and several other Republican-controlled states to see if they follow suit. If any of these states enact new maps that violate the law, I expect prompt litigation as well.
Meanwhile, California has a ballot initiative to redraw its map — largely to offset GOP gains in Texas. Other Blue states are reportedly considering what, if anything, they will do.
Q: Can you define a constitutional crisis? What actions has Trump taken to put us in such a crisis?
— Becky
A: There is no one settled definition of constitutional crisis nor is it a bright line. There is no on/off switch that will put us in such a crisis or out of one.
In general, I think of a constitutional crisis as any situation where the checks and balances of the Constitution are systemically ignored or fail. This can be the result of one branch of the government failing to perform its constitutional duties or another branch ignoring its own limitations without consequences.
We are currently witnessing both. Republicans in Congress are refusing to guard congressional powers and have abdicated them to the executive branch. Meanwhile, the Trump administration has defied court orders and Trump has overreached his executive power.
Making matters more fraught, Trump is trying to erode important constitutional rights like the right to vote, freedom of speech and birthright citizenship. Taking all of this together, it is clear we are in a constitutional crisis now and it is likely to deepen.
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