The New Yorker:

The Administration’s defiance of Congress and the judiciary has both flouted and made use of the country’s legal system.

By Isaac Chotiner

Since Donald Trump took office, on January 20th, his Administration has slow-walked or outright failed to comply with court orders related to a range of issues, most notably immigration and government funding. I recently spoke by phone with Samuel R. Bagenstos, a professor of law at the University of Michigan and a former general counsel to the Department of Health and Human Services in the Biden Administration. The goal was to go through some of these cases to understand why legal experts are so concerned, and whether there is a larger strategy to the Administration’s behavior. During our conversation, which has been edited for length and clarity, we also discussed the problem with the phrase “constitutional crisis,” whether bureaucratic incompetence could really be the reason for some of Trump’s actions, and why the past two months have been so unprecedented in American history.

Are we living through a constitutional crisis, or do you feel like we’re still some distance away from one?

I really hate the significance that’s being put on the phrase “constitutional crisis.” We are living through a massive assault on basic premises of our constitutional system. It’s been brewing for a long time, but it’s been acute for the last two months. Call that a crisis or not, but either way we are in deep, deep trouble.

Why don’t you like the phrase?

It has so many potential meanings. A constitutional crisis could be something that is a very discrete event, where two branches of government stare each other in the face in what looks like a standoff, and then they eventually resolve it. Or a constitutional crisis could be, Wow, it looks like basic building blocks of our constitutional system are about to go away. I think we’re much more in that second mode here. The phrase suggests that once you cross a certain point, something bad is going to happen that didn’t happen before. And so everybody starts asking, Well, have we crossed it yet? If the President is winking at court orders but not really defying them, is that enough? If the President is defying district-court orders but not the Supreme Court, is that enough? And I think that’s sort of a fool’s game. I’d rather just focus on what the President is doing.

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