Several clients and friends have asked about an op-ed piece I authored for The Tennessean, “This Is Not a Constitutional Crisis”.
Here’s the article in full:
I have heard a lot said, and seen a lot written, in the past few months about the possibility of a “constitutional crisis.” What is one and are we in, or close to being in, a constitutional crisis?
The drama should be brought down a notch. The courts in our country are deliberative bodies. They are designed to determine the truth of factual disputes, interpret the law, and reach a resolution of conflict. Their work is hard and sometimes can seem slow to the public, but the task assigned to courts requires procedural steps and, most of all, thought.
A constitutional crisis can be defined as a dispute about the constitution that requires immediate resolution.
Most cases, even constitutional cases, aren’t a crisis. There are thousands of constitutional disputes pending in the courts of the United States. Some are in federal court, but many of them are pending in state courts.
Some are in criminal cases and some in civil. Disputes come up in criminal courts, often interpreting the meaning of an “unreasonable” search or seizure or double jeopardy. Disputes in civil courts can concern any number of constitutional provisions such as freedom of the press, the establishment of religion, or the power Congress to regulate commerce.
It is rare that the resolution of these cases is a “crisis” that would require an expedited resolution.
Some of us remember the impeachment proceedings concerning President Nixon. Even that dispute was not necessarily a crisis. Congress was following the procedure that is set out in the constitution. Although the process was arduous for our country, it did not need to be expedited.
The closest thing to a constitutional crisis in my adult lifetime was Gore v. Bush. However one may feel about the outcome of the case, it was important for our country to have a president and important that the process for figuring that out (after the election) be short.
There are exceptions to the rule that courts act deliberately instead of quickly. Those cases involve a request for a temporary restraining order “TRO” or a temporary injunction.
A party does not win or lose the case itself in a ruling regarding a TRO. The question is whether the status quo should persist while the case is getting ready for trial.
A plaintiff can only win a TRO with proof 1) that they are likely to succeed on the merits at trial, 2) that they likely to suffer irreparable harm, 3) that the fairness tips in their favor, and 4) that an injunction is in the public interest.
The ruling from a court that the plaintiff is likely to succeed on the merits can take the wind out of the plaintiff’s sails, but it is not a final decision in the case.
Although I hate to cite the rulings on the “travel ban” as examples of TRO’s because they are so politically charged, those are surely the examples that will spring to mind. Lower courts preserved the status quo. But now the Supreme Court has modified those orders and will hear the entire case during its October term.
And that brings me to my final point. The cases about which we hear the words “constitutional crisis” may, in fact, represent a political problem and not a legal one.
Our judicial process works, but the cases before our judges are rarely a crisis in the interpretation of the constitution.
Let’s all take a deep breath and bring down the drama.