Panic politics: Law professors' umpteenth 'constitutional crisis' falls flat

It's only March, and we have yet another declaration of a "constitutional crisis."

The latest dire declaration comes from roughly 950 law professors, who refer generally to actions and policies implemented by President Trump as "beyond his constitutional or statutory authority."

So — what happens if the "experts" hold a crisis and no one shows up?

After years of such claims, the perpetual crisis has left a dwindling number of people inclined to panic. Many simply have more pressing matters at the moment and have the same reaction of former Secretary of State Henry Kissinger: "There cannot be a crisis next week. My schedule is already full."

The latest letter follows a familiar pattern that has played out like a political perpetual motion machine since the first Trump impeachment. It works something like this: A legal academy composed of largely liberal academics announces a "constitutional crisis" caused by conservatives, and then a largely liberal media runs the story with little scrutiny or skepticism. On most echo-chambered media sites, the public rarely hears an opposing view.

The purging of conservative and libertarian faculty from most universities has been a long-standing problem. In self-identified surveys, professors confirm that some departments lack a single Republican. A study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only 9 percent of law school professors in the top 50 law schools identify as conservative.

Law schools are not unique. A survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identified as “liberal” or “very liberal.” Only 2.5 percent identified as “conservative,” and only 0.4 percent as “very conservative.” A 2017 study found that only 15 percent of faculty members were conservative. Another analysis found that 33 out of 65 departments lacked even a single conservative faculty member.

In other words, it is embarrassingly easy to get 1,000 law professors to sign off on letters claiming endless constitutional crises caused by Trump or conservatives.

Those letters are then fed to eagerly awaiting media outlets. The perpetual machine then whirls and spins as liberal professors feed liberal reporters, who then feed liberals in Congress, who cite the unchallenged consensus of academia and the media.

The New York Times rushed the news to its viewers that "Trump’s Actions Have Created a Constitutional Crisis, Scholars Say." The Times interviewed Berkeley Dean Erwin Chemerinsky, who previously called the conservative justices "political hacks" and just published a book titled “No Democracy Lasts Forever: How the Constitution Threatens the United States.”

Chemerinsky breathlessly explained "We never have seen anything like this.”

The problem is that we have. Presidents often negate the prior executive orders of their predecessors, fire their appointees and implement sweeping new changes. Those actions are frequently challenged and some are found to be procedurally or substantially unlawful. Others are upheld.

President Biden was repeatedly found to have violated the constitution without most of these signatories expressing a peep of concern over the mounting "crisis."

Indeed, some pushed for unconstitutional actions against the overwhelming views of legal experts. Take Harvard Professor Laurence Tribe, who also signed this letter to express alarm at Trump pushing the Constitution to the breaking point. Tribe has attacked conservatives in profane diatribes and supported packing the Supreme Court to engineer a liberal majority.

When Biden wanted to circumvent Congress and implement billions in student loan forgiveness payments before the election, Tribe was there. Even former Speaker Nancy Pelosi admitted that Biden could not constitutionally wipe out hundreds of millions of dollars of student loans without congressional action. However, Tribe assured President Biden that it was entirely legal.

It was found unconstitutional by the Supreme Court and lower courts.

When Biden wanted to impose a national eviction moratorium, he admitted that his own lawyers told him that it would be flagrantly unconstitutional. Pelosi then told him to call Tribe, who assured Biden he had the authority to act alone.

This was also quickly found to be unconstitutional.

Biden was also found to have engaged in racial discrimination and other flagrant constitutional violations.

Of course, none of that is a crisis, and none of these signatories ran to blast fax a letter to the legal academy.

Other signatories, such as Professor Heidi Li Feldman, have declared that conservative justices and lawyers are "lawless" due to their opposing constitutional views. She has called upon law professors not to fall “into complicity with lawlessness.” In other words, conservative jurisprudence, followed by roughly half of the bench, is simply unacceptable and should not be recognized.

If you view conservatives judges and justices as "lawless," then every decision that they issue can be construed as a "crisis" in failing to adopt your own interpretive approach.

There are good-faith reasons to challenge some of Trump's actions, as there were under Biden. I have criticized some of those measures. However, Trump has repeatedly pledged to follow adverse court orders while he seeks appeals. That is precisely what he did in his first term, where he complied with opposing rulings, including some issued by his own appointees.

Trump is also prevailing in some of these cases and will likely prevail in many others. Democratic groups have forum-shopped around the country to bring challenges before favorable judges. Some have issued injunctions, while others have not. Others have already been reversed.

For example, the media made great fanfare over restraining orders issued to limit the actions of Elon Musk and the Department of Government Efficiency. Less coverage was given to later opinions reducing those orders or setting them aside, including a recent order refusing to bar Trump from firing many government employees at USAID.

Likewise, the media and many professors lionized Special Counsel Hampton Dellinger for suing to stop Trump's firing. When Judge Amy Berman Jackson in Washington issued her opinion, some of us expressed skepticism over her cited legal authority. Within four days, the D.C. Circuit had reversed her, ruling for Trump. Dellinger then dropped his own case rather than multiply adverse rulings.

None of this means that Trump will prevail in most such lawsuits or that these are not good-faith challenges. However, the record does not suggest a constitutional crisis. It suggests the opposite — a constitutional system that continues to function efficiently and fairly.

The real "crisis" seems to be that Trump is winning in some of these cases. To make matters worse, he is complying with adverse rulings. After an election where many of these same voices declared the imminent death of democracy if Trump were elected, the constitutional system seems to be, inconveniently and stubbornly, very much alive and well.

Of course, opposing these actions on policy or conventional legal grounds would generate little press. It has to be a "crisis" to get headlines and segments on cable news. Stanford law Professor Pamela Karlan and co-signatory described Trump as different, a president "for whom the Constitution [is] essentially meaningless.”

Karlan, who previously testified in favor of impeaching Trump in his first term, ignores the fact that our system does not depend on how Trump feels about the Constitution, even if she did have an insight into his inner self. We have the oldest and most successful constitutional system because it does not rely on the good motivations or values of those in government. It has survived centuries with often hostile presidents due to its checks and balances.

In the end, the seeming unanimity is not reflective of the merits but the membership of the legal academy. From calls to pack the court to curtailing free speech to trashing the Constitution, law professors are like priests who have kept their frocks while losing their faith. And their crisis of faith is the only crisis these professors are facing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

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