The Trump Years and Constitutional Crisis
Why a scholar of constitutional crisis thinks we could be in one
In my last essay, I defined “constitutional crisis.” Now, I will explain why we may be in the early stages of a constitutional crisis and what that constitutional crisis could look like in the near future. As my previous essay demonstrated, I believe it is important to use the term “constitutional crisis” carefully. And yet, as a scholar who has studied constitutional crisis for several years, I am alarmed.
What are the biggest threats of constitutional crisis?
There are three major threats to our constitutional order today. The first is the rise of political violence. As I explained in the previous essay, political violence has been common throughout American history and has frequently contributed to constitutional crises. About Americans now consider political violence acceptable.
The violence spans the political spectrum. Leftists attempted to murder Republican and Republican-appointed U.S. Supreme Court Justice . President Trump endured assassination attempts during last year’s election, although we know less about the would-be killers’ motives. In March, the New Mexico GOP’s headquarters were .
On the right, we have the attack on the Capitol on January 6, 2021. President Trump an angry crowd that “we won this election and we won it by a landslide” despite losing the popular vote by more than seven million. He encouraged them to “march[] over to the Capitol building to peacefully and patriotically make your voices heard” and “stop the steal.” After the speech, the crowd forced members of Congress to evacuate the Capitol building and assaulted several police officers in an effort to push Congress not to certify President Biden’s victory.
President Trump prevailed in the 2024 campaign despite January 6 and granted mass pardons and commutations to those prosecuted for participating. Among them was Proud Boys leader who had been convicted of seditious conspiracy. President Trump surely won because of real concerns over inflation and the border. At the end of the day, though, the electorate also sent an ominous message: “We are willing to support politicians who refuse to accept defeat and attempt to overturn elections.”
Other politicians watching now know they can engage in similar behavior and still be taken seriously by voters. Politicians generally have healthy egos, and some of them are more committed to their advancement than they are the public good. Why concede when they could attempt to force their way into power after losing an election? At best, they succeed in reversing the election defeat. At worst, they run again in a few years and have the same chance at winning as if their attempt at a coup never happened.
I’m especially worried that the next event like January 6 will be staged by Democrats who feel morally justified in using President Trump’s tactics and are unwilling to listen to complaints from people who supported Trump last year.
The second threat is escalating fights over identity. This is evident in the attempt to end birthright citizenship and in debates over how to confront racism and bias. Today, it is that a desire to keep America white accounts for why some support ending birthright citizenship. Alt-right thought leader Richard Spencer has admitted to wanting to form a in North America. He recently “I don’t support ‘birthright citizenship’…That said, this is pretty clearly what the 14 amendment states in its opening paragraph. Could this somehow be reinterpreted by Trump’s Court? Does Trump need [to] start an amendment process?”
Some may read the 14th Amendment and, in good faith, conclude that it doesn’t automatically grant citizenship to babies born here, notwithstanding the among reputable legal scholars. However, a well-researched Supreme Court opinion demonstrating that the 14th Amendment’s text and history require birthright citizenship won’t convince Spencer and fellow travelers to embrace the spirit of racial equality at the amendment’s heart. Spencer’s with MAGA — embracing it and then denouncing it — points us to another truth. The desire to end birthright citizenship and make America white only predated Donald Trump, and it will persist after he leaves office.
The second Trump administration appears more willing to use federal resources to confront discrimination against certain groups than against others. President Trump has withheld funding from universities and worked to deport particular individuals as part of an effort to combat antisemitism, a longstanding problem in American life that during some of the protests after Israel began its war in Gaza. He has offered white South Africans and started a task force to confront what he sees as anti-Christian bias the government. About 60% of white evangelical Christians now believe .
At the same time, in 2023, of the reported racially motivated hate crimes were against Black Americans. Muslims have been targets of hate crimes. And LGBTQ citizens were the victims of of hate crimes in 2023. There are still massive wealth gaps between Blacks and Hispanics and members of other racial groups. I worry about what happens next time something like George Floyd’s murder happens. Will racial minorities feel like the Trump Administration understands their fears and is acting to make the country safe for them? And if they don’t, what happens if they feel they have to take their safety into their own hands? Meanwhile, if you were a white supremacist right now, would you honestly feel like the Trump administration considers stopping you from committing an attack a priority?
As I document in , conflict over identity, particularly race-based, has often resulted in constitutional crisis. I worry that polarized understandings of who is experiencing discrimination and what to do about it place us at risk.
The third threat is the corruption of checks and balances. To ensure that tyranny never happened in America, our earliest constitutions structured the government to avoid giving any one person or group too much power. However, checks and balances no longer work as a practical matter in many instances.
Tribal partisanship is part of the explanation. Imagine an executive committing clear constitutional violations, but who is popular with voters in their party. Legislators from the executive’s party cannot impeach and remove the executive without committing career suicide. They know a loss to a primary challenger awaits them. At the federal level, two-thirds of U.S. Senators must convict a president to remove him. It is impossible to imagine that happening today. This means presidents know they can violate the U.S. Constitution without risking removal so long as they preserve their popularity with fellow party members. This logic applies with special force to the several states with one-party rule, like Texas and California.
Extreme gerrymandering undermines checks and balances, too. Illinois Democrats drew maps for the state senate so skewed in their favor that Princeton University’s Gerrymandering Project graded them as an for fairness. North Carolina Republicans managed to draw legislative districts that gave them a of both houses of the legislature despite having support from nowhere near a supermajority of voters before last year’s elections. With such a majority, North Carolina’s legislature essentially was the government. That was enough for them to pass legislation over a governor’s veto. It was free to operate without any checks.
Finally, judicial independence is severely compromised. At the state level, judge selection is openly political. Twenty-two states use to pick some judges and eight use partisan elections to choose supreme court justices. Races become more expensive with each passing year. This spring’s election for a seat in Wisconsin attracted in spending and attention from national political figures like President Trump, Elon Musk, and President Obama. Does anyone think those contributing massive sums don’t expect something for their investment, and that that something may not align with the correct reading of the law in a particular case? To make matters even worse, partisan judges decide election contests where a fellow party member competes for a seat on the bench. When their decisions break down on party lines — as they are in — how can judges look like the neutral umpires we need?
Judicial independence is in trouble at the federal level, too. President Trump is openly defying a court order to “facilitate” return to the United States. Republicans have discussed district courts that rule against President Trump. During the Biden years, prominent Democrats angered by rulings from the Supreme Court’s conservative majority called for , which would lead to a cycle of court expansion each time one party had control of the presidency and U.S. Senate. In 2016, then-candidate Trump made news by releasing from which he would choose to replace Antonin Scalia on the U.S. Supreme Court and promising they would be Other candidates and campaigns surely have such lists, even if they refuse to provide them. A lower court federal judge desiring an appointment to a higher court knows their decisions must satisfy a president from their political party to be nominated. For all of these reasons and more, Americans are increasingly questioning the U.S. Supreme Court’s legitimacy. A poll last year found that of Americans believed Supreme Court justices are influenced by their ideology when making decisions and that only 30% believe the justices are fair and impartial.
In 2000, Al Gore gave a after the U.S. Supreme Court ruled against him and, with considerable grumbling, Democrats accepted the Court’s decision. Would that happen today?
I fear we are entering a constitutional crisis
I believe the term “constitutional crisis” should not be used lightly. And from my years studying constitutional crises, I know that constitutional crises are most readily identified with the benefit of hindsight. That notwithstanding, I believe we are at serious risk of a constitutional crisis right now. I’ll explain why and then demonstrate how a constitutional crisis could deepen in the coming years.
What worries me is President Trump’s willingness to defy court orders and the unwillingness of our political institutions to check him. The Trump Administration concedes that Abrego Garcia was erroneously deported to El Salvador an immigration judge’s ruling that he faced persecution from Barrio 18 if sent there. The U.S. Supreme Court directed President Trump to “facilitate” Garcia’s return. Yet President Trump won’t bring Garcia back.
Congress hasn’t intervened. Although John Kennedy (R-La) this a “screw-up,” no hearings are scheduled to investigate further and Congress has not passed resolutions urging President Trump to comply with the Court’s order. For reasons stated earlier, impeachment and removal are not a real threat. Republican members of Congress have an incentive to cheer President Trump on as loudly as possible to avoid a primary challenge.
President Trump welcomes this fight politically. He argues that his critics are supporting the type of who murders Americans. President Trump’s allegations about Abrego Garcia may well be true. But the larger question is whether the president must follow the letter of the law, honor due process, and obey court orders.
If President Trump sees that he can avoid doing so without suffering politically, he will continue pushing the envelope. Will he listen if the U.S. Supreme Court tells him that his order unilaterally restricting birthright citizenship is unconstitutional? Will he listen if courts tell him he can’t take away Harvard’s tax-exempt status? Will he abide by a determination that he can’t send American criminals to El Salvador? If the answer is “no” — and I can certainly envision it being “no” — then we will no longer have a republic. We will have what some scholars call an “electoral autocracy.” Some Americans may be fine with that — so long as the autocrat is on their side.
How a constitutional crisis could worsen
Let’s fast forward a year. 2026 is America’s 250th birthday. We could have come together across partisan lines to celebrate our founding documents and America’s exceptional story. Instead, 2026 becomes an opportunity for increasingly angry citizens to argue why their political opponents are ruining the country. Progressives and conservatives insist that the other side is misrepresenting American history to score political points and delegitimize America’s constitutional project.
At the same time, a bitter midterm campaign takes place. After getting frustrated with progress in Congress, President Trump attempts to get Senate Republicans to end the filibuster. When they decline, he intervenes in Republican primaries and endorses candidates who promise to end the filibuster. At rallies across the nation, he promises supporters that if Republicans keep Congress, he will enact legislation stripping citizenship from everyone who was born to a parent illegally present in the United States (his applied only to children born after the executive order’s release). He reads aloud social media posts and speeches from Democrats advocating adding seats to the Supreme Court and says he wants to “give them a taste of their own medicine” to get “loyal” people on the bench while his crowds roar.
Other Republican candidates in primary races say that with a filibuster gone, they will push for a national abortion ban. President Trump posts on social media that he might veto such a ban, but will look into whatever Congress sends him before criticizing late-term abortions.
Meanwhile, some Democrats win primaries by promising to impeach President Trump, and some incumbents in safe Democratic districts pledge the same. A few other vocal Democrats float the idea of decertifying the 2024 election if they take a majority of Congress because President Trump is an insurrectionist barred by Section 3 of the 14th Amendment from serving in office.
Legal scholars and commentators debate which of these campaign promises are constitutional and would be upheld by courts. Regardless, Americans on all sides of the political spectrum believe the stakes of the midterm election will be extraordinarily high. Let’s consider how the campaign unfolds at the national level and then see how state-level politics could heighten the risk of a constitutional crisis.
National level: how the 2026 midterms could unfold
The has been signed into law. The legislation requires voters to show proof of American citizenship when registering to vote or updating their registration. Put aside your view on whether the legislation is just, wise, or constitutional. It is in effect.
On Election Day, Democrats have a decent showing. They don’t take control of the U.S. Senate, but analysts expect them to have a majority of 15 seats in the House of Representatives. However, those 15 races and a few others are bogged down in recounts amid questions about which ballots to count. Republican candidates challenge ballots in predominantly Democratic counties, citing lists of voters whose registrations may not satisfy the SAVE Act (and yes, candidates make like this). Specifically, the candidates challenge voters who provided a government-provided photo ID along with a birth certificate to prove citizenship; they argue that the birth certificates were invalid either because they were forged as part of an effort to engage in voter fraud or because the birth certificates contained like not providing the voter’s full name or the full name of the voters’ parents.
With President Trump’s encouragement, the candidates refuse to concede. Their efforts to overturn the elections ultimately fail in state and federal court, but they press on. In January 2027, they bring their election contests to Congress and ask the outgoing Republican majority to seat them instead of their Democratic opponents. They invoke Article 1, Section 5 of the , which provides that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” (Contests like these used to happen with some frequency.)
Protests erupt nationwide, and hundreds of thousands of angry Democrats march to D.C. and demonstrate outside Congress and the White House. Citing the , President Trump sends military personnel to Washington, D.C., and major cities around the country, but the protests only grow so large that major cities are functionally shut down. Unverified reports circulate that a protester in one major city deliberately set the house of one of the Republican candidates on fire, and that Russia and Iran are working to foment protests.
President Trump writes on Truth Social that “2020 will not be repeated on my watch” and suspends the writ of habeas corpus, which allows people to test the constitutionality of their detention. The provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Trump administration argues that the mass protests constitute a “Rebellion,” but several of those arrested by deployed military argue that suspending the writ of habeas corpus under these circumstances is unconstitutional. In emergency orders, several judges side with protesters, but a few others say that whether something is a “Rebellion” is a “political question” on which the administration gets deference. The U.S. Supreme Court is expected to weigh in soon.
Speaker Mike Johnson assigns the contests to a special committee with a Republican majority. At the end of January 2027, the committee decides to seat the 15 Republican candidates on a party-line vote after concluding that the Republicans had prevailed when considering only votes lawfully cast. The result means that Republicans retain the House of Representatives and Mike Johnson remains Speaker.
Before the full House of Representatives can adopt the committee’s recommendation, Democrats begin marching towards the Capitol building on January 31, 2027. Two hundred armed soldiers stand between them and the doors. One soldier speaking into a bullhorn reminds them that the writ of Habeas Corpus is suspended and demands that they leave the premises. The massive crowd continues marching when the order is given to turn on water hoses and begin shooting rubber bullets.
There are panicked screams, but thousands continue running and push aside soldiers and make their way into the House chambers, where they start cheering. They take every seat in the galleries and sit on the House floor while Republican members of Congress flee the building. Some Democratic members urge them to leave, but others shake hands and laud them for their patriotism. Outside, dozens of protesters have been seriously injured, and hundreds have been arrested. Several soldiers have also sustained serious injuries. National media reports that at least two are in critical condition and on the verge of death. The soldiers have temporarily retreated but have orders to regroup and evict the marchers from the Capitol building.
Meanwhile, thousands of protesters surround the Capitol building and begin singing “We Shall Overcome.” The stock market experiences the worst crash in several years as investors worry that Congress cannot raise the debt ceiling and that the United States will begin defaulting on treasury notes.
North Carolina: how the 2026 midterms could unfold
Going into the midterm elections, Republicans have a in the state senate and are one vote from a supermajority in the state house of representatives. Republicans pick up three seats in the senate and gain a two-thirds majority in the chamber. One uncalled race for the house of representatives will determine whether Republicans get a supermajority there.
On election night, the Democrat is ahead in the official count by about 800 votes. However, after a court-ordered recount excludes several votes from those whose registration fails to comply with the state’s photo ID law, the margin slips to 670. In January 2027, the Republican candidate files an election contest in the legislature. With 5,000 Democrats demonstrating outside the legislature, the majority decides to seat him instead of the Democrat after hearing testimony in a closed-session hearing from confidential informants. The informants testify that there was where Democratic operatives gathered incomplete ballots from absentee Republicans and marked votes for Democratic candidates. Democratic Attorney-General Jeff Jackson files a quo warranto petition arguing the Republican candidate seated doesn’t hold a true legal claim to office.
In mid-January 2027, the legislature passes a law changing the to ban abortion once a fetal heartbeat is detected. Governor Josh Stein vetoes the bill, but the legislature promptly overrides. Governor Stein, Lieutenant Governor Rachel Hunt, and Attorney General Jackson give a press conference where they say they will not enforce the new abortion law. They say the law is invalid because the legislature that overrode Stein’s veto was improperly constituted.
The legislature responds by impeaching and removing Stein, Hunt, and Jackson for refusing to execute the law faithfully. The legislature declares Republican Phil Berger governor under North Carolina’s .
Berger demands that Stein vacate the governor’s office. Stein takes the position that the impeachment and removal proceedings were invalid because the state senate didn’t actually have the necessary two-thirds majority for removal, because the Republican seated after the election dispute is involved in quo warranto proceedings and doesn’t have the right to occupy their office.
On the same day Democrats in Washington, D.C., break into the Capitol building, 20,000 Democrats march through Raleigh. About 2,000 of them go to the Governor’s Mansion and surround it. They chant, “Stay!” and applaud vigorously when Stein addresses them. He indicates that he will fight the legislature in court and tells supporters to continue making their voices heard, but implores them to remain peaceful.
Meanwhile, about 1,000 Republican counter-protesters come to the governor’s mansion, chanting “Stein Must Go!” Berger celebrates them on social media but also cautions his supporters to stay peaceful and avoid violence at all costs. The two sides angrily confront each other. A gun discharges, and then several more shots are heard before state police wedge themselves between the sides. There is a collective gasp when one of the Democrats surrounding the Governor’s Mansion is on the ground with a bullet wound to the chest. He is taken to the hospital and pronounced dead. Some media outlets report that a Stein supporter fired first, while others report that a Republican fired first. The name of the slain Democrat and details about his family make the rounds on social media.
North Carolina politics meets national politics
Shortly after midnight on February 1, 2027, North Carolina’s legislature votes to ask President Trump to intervene. It cites Article 4 section 4 of the , which says “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Stein and Berger tell the North Carolina National Guard to maintain order on the morning of February 1, 2027. But the national guard is paralyzed as members and high-ranking officers debate who is really in charge. An effort to have prominent citizens from both parties negotiate a compromise fails amid speculation that President Trump will soon become involved.
At noon on February 1, 2027, President Trump addresses the country from the Oval Office. He gives protesters 24 hours to leave Washington, D.C., and warns there will be “terrible consequences” for anyone who disobeys. He also tells Americans, “I am greatly disturbed by reports from North Carolina. Democrats are trying to do there what they’re doing here — engage in an insurrection to steal an election. I just informed Phil Berger that pursuant to my authority under the Guarantee Clause, I recognize him as North Carolina’s lawful governor. I hereby order all disorderly persons to submit to his authority and return peaceably to their homes. In the coming days, I will deploy the armed forces to the state to enforce order.”
During the speech, news breaks that China has invaded Taiwan and that American tourists in Taiwan were killed when Chinese planes dropped bombs on Taipei. Right after the speech ends, there is a mass shooting in Kansas City, Missouri, killing 12 and wounding 13. No shooter is definitively identified. The FBI quickly announces it is investigating the shooting as a possible terrorist attack.
In the evening of February 1, 2027, Texas’s and Florida’s governors post on X that they are willing to deploy their state national guards to North Carolina to support Berger while President Trump uses the military to confront national threats. Members of California’s and New York’s Democratic legislatures propose resolutions recognizing Stein as governor of North Carolina.
A tense night passes. What will the morning bring?
Unrealistic fiction or plausible scenario?
I would have dismissed the scenario above as unrealistic fiction a few years ago. But although I don’t predict that this scenario will come to pass, I am sad to say that I view it as plausible.
If you are worried too, consider reading . In addition, I will be giving a about the book on May 15 at 8:00 P.M. The event will be small so that people have an opportunity to ask questions, so as soon as you can! You can order the book from or . Those ordering from can get a 30% discount with the code: NYUAU30.
If you live in the Raleigh, North Carolina, area, I will also hold an in-person event at at 8111 Creedmoor Rd Suite 153 on May 22 at 7:30 PM. You don’t need to sign up in advance; you can just show up. I will happily sign a copy of the book there.
Starting on July 1, Marcus Gadson will be an Associate Professor of Law at the University of North Carolina — Chapel Hill. Follow him on and .
