"We are living through a massive assault on basic premises of our constitutional system" said Ford School Professor Samuel Bagenstos, in a question-and-answer article for The New Yorker magazine. He said, "I really hate the significance that’s being put on the phrase 'constitutional crisis,'" because the problems we are seeing now have "been brewing for a long time, but it’s been acute for the last two months."
Instead, he said, "I’d rather just focus on what the President is doing."
"We have a president who has made it very clear that he believes he has the prerogative to pick and choose what laws passed by Congress he has to follow." That, he says, is "the first and most fundamental challenge to our constitutional order."
Bagenstos explained that the "Trump Administration has consistently acted at least under the pretense that they are trying to comply with all of these court orders." However, he says, "It’s surrounded by a whole bunch of language and rhetoric that strongly suggests that they don’t believe the courts have power to act in these cases."
He then addressed what he had seen with the deportations and court rulings against the Trump administration. He said, "Taking an action to deprive the court of its ability to decide the motion that is before it at the emergency hearing is not something that is at all normal." Letting the deportation flight take off while hearings with judges were in process, he said is not a good look for the administration. "I don’t think it shows the kind of respect for the courts that the Department of Justice and the executive branch usually show."
On the topic of USAID, Bagenstos said, the cuts the administration made were justified by saying, "They somehow managed to get through close to ten thousand grants and contracts that they say they individually reviewed up to the level of the Secretary of State in about six weeks." Then the judge's decision was, "I don’t have the authority to enjoin you from individual decisions. The individual grantees might have to sue about that." This ruling he said "may reward the Administration’s conduct" if judges continue to act within their ordinary procedural rules and let the administration have wide-ranging freedoms.
Bagenstos also addressed Congress, saying, "One of the very depressing and dispiriting aspects of this is that Congress is not standing up for its prerogatives." He pointed out that "The courts can’t countenance this kind of violation of congressional prerogative." He concluded, "People expect too much if they expect the courts to try to aggressively defend legislative prerogatives when Congress won’t do that."
