In Two Weeks, Trump Has Already Created a Constitutional Crisis | Opinion

President Donald Trump has spent the first weeks of his second term demonstrating exactly why the framers of our Constitution created a system of checks and balances. Through a series of legally dubious executive orders, Trump has effectively declared himself above the law, free to ignore Congress, and rewrite constitutional interpretation at will. His actions on TikTok, federal spending, and birthright citizenship represent nothing less than a direct assault on our constitutional order. The media might be downplaying it, but we are now in the throes of a constitutional crisis.

In the opening day of his second term, Trump choose to simply ignore a bipartisan law banning TikTok that was affirmed by a unanimous Supreme Court. The law couldn't be clearer—TikTok was to be banned unless specific divestiture conditions were met. Yet Trump, apparently swayed by wealthy donors with financial stakes in ByteDance and his own personal political calculations, has decided the law doesn't apply to him.

Trump's executive order that overrode Congress' clear directive to shut down TikTok puts him squarely in what Supreme Court Justice Jackson famously called the "lowest ebb" of presidential power, meaning that he is acting against the express will of Congress. Nevertheless, TikTok remains active, and Congress sits silently, simply allowing this unilateral usurpation of power by a president.

Empowered by this legislative acquiescence, Trump has now decided to put a freeze on all federal aid that does not fit with his agenda. This is in spite of the fact that the Constitution explicitly grants Congress, not the president, the power of the purse. By unilaterally deciding which congressionally appropriated funds will actually be spent, Trump is attempting to seize a fundamental legislative power for himself. This echoes his first term's emergency declaration to fund a border wall, another instance where he tried to circumvent Congress' spending authority that was rightfully challenged in court.

Perhaps most alarming is Trump's executive order on birthright citizenship, which attempts to unilaterally rewrite the 14th Amendment's unambiguous guarantee that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The Supreme Court has consistently held this applies to children of all residents, regardless of immigration status. A president cannot override the most fundamental of constitutional rights by executive fiat, yet that's exactly what Trump is attempting to do.

The common thread running through these actions is a dangerous theory of unlimited executive power. Trump appears to believe that his constitutional responsibility for national security and foreign policy grants him authority to ignore any law he finds inconvenient. This goes far beyond traditional exercises of executive discretion or even controversial signing statements. Trump is essentially claiming the power to nullify laws and constitutional provisions at will.

This presents Congress with a stark choice—it can defend its constitutional prerogatives or accept a fundamental reshaping of our system of government. Republican lawmakers who thundered about executive overreach during the Obama administration now face a president explicitly claiming the power to override their legislative authority. Their response so far ranges from quiet acquiescence to active defense of Trump's actions, illustrating institutional loyalty's death at the hands of partisanship.

The courts will inevitably be called upon to referee these conflicts, but by the time cases wind their way through the torpid judicial system, significant damage to our constitutional order will already be done. Every day these executive orders remain in effect is another day where the president's will supersedes the law of the land.

This is precisely the kind of crisis the Founding Fathers sought to prevent through separation of powers. A president who can ignore laws passed by Congress and affirmed by courts is no longer a president, he's a monarch. Unless Congress and the courts forcefully check these unprecedented assertions of executive power, Trump's second term may permanently alter the constitutional balance that has preserved our democracy for over two centuries.

Nicholas Creel is an associate professor of business law at Georgia College & State University.

The views expressed in this article are the writer's own.