With the second Trump administration taking an even more expansive approach toward presidential power than the first, America is watching a clash between the executive and judicial branches unfold.
But legal scholars say there’s a difference between unconstitutional moves and bad governance.
For John Inazu, a law and religion professor at Washington University in St. Louis, the threshold for constitutional crisis comes down to asking, “What do the people with the guns do?” In other words, when the two branches are in conflict, do military and law enforcement back the decisions made by the president or by the courts?
Inazu and several Christian legal scholars interviewed by CT agreed that the president flouting a judicial ruling, particularly one handed down by the Supreme Court, would lead the United States into an unprecedented constitutional crisis.
“I think we are moving closer and closer to a moment of crisis,” Inazu said.
Currently, the Trump administration is embroiled in a legal battle over whether it defied a federal judge’s instructions to stop certain deportations when it sent over 200 Venezuelans to a prison in El Salvador. The halt order came due to questions about the process the administration had used to authorize the deportations.
Trump had issued an executive order declaring that the Alien Enemies Act of 1798 allowed him to conduct expedited deportations for the Venezuelans, claiming they had ties to the Tren de Aragua gang.
The declaration and the deportations happened in quick succession over a week ago, with Trump going on to call for the judge who challenged the decision to be impeached.
It’s unclear whether the issue will reach the Supreme Court or be settled in some other way—and whether the administration would defer to a contrary ruling.
Questions of authority are at the heart of Trump’s current clashes with the judicial branch, and for Christians, regard for the rule of law and constitutional order also carry theological implications.
“Loving your neighbor is not just giving a cup of cold water in that simple sense or coming to the help of those who get into a crisis,” said James Skillen, founder of the Center for Public Justice and a Christian political philosopher. “One of the biggest ways we love our neighbor is seeing that we all, they all, get treated justly in a political arena.”
But the system Americans set up to ensure justice and balances of power faces new challenges. Earlier this month Trump declared, “He who saves his Country does not violate any Law.”
His allies also seem eager to defend an expansive view of the powers of the presidency. Elon Musk questioned, “What is the point of having democratic elections if unelected activist ‘judges’ can override the clear will of the people?” He said judges blocking presidential orders equals a “TYRANNY of the JUDICIARY.”
Some House Republicans have begun to push for impeaching federal judges who cross Trump. And one of Trump’s most influential advisers, White House management and budget director Russell Vought, has himself posited a theory of “Radical Constitutionalism” that scraps the idea of looking at the original intent of the Constitution’s authors.
Vought instead believes “we are living in a post-Constitutional time” and urges the political right to “throw off the precedents and legal paradigms that have wrongly developed.”
In an opinion article for the American Enterprise Institute, Harvard Law School professor Jack Landman Goldsmith and former White House counsel Bob Bauer noted it’s not uncommon for administrations to “sometimes legitimately test the validity of accepted legal principles in court to seek a new legal understanding.” But Vought’s theory calls for far more than that.
“They haven’t openly yet said they can defy judicial orders,” said Ilya Somin, a law professor at George Mason University, while noting that Musk and some of Trump’s loyalists have suggested as much. In Somin’s interview with CT, which came prior to Trump’s skirmish with the district judge over deportations, he also predicted that immigration presented the danger of a clash between the branches.
“What happens if the executive just says, ‘Okay, we’re just not going to obey’?” Somin said. “Ultimately, to some extent, it does depend on whether at least some officials in the executive branch are willing to help with the enforcement.”
That would be uncharted territory. “We don’t really know what would happen,” Somin admitted.
Legal scholar Robert Cochran said Americans are tempted to take over rather than wait for the separation of powers to keep authority in check.
America’s founders “set up a system that was designed for conflict,” said Cochran, professor emeritus at Pepperdine’s Caruso School of Law and coeditor of a 2013 book, Law and the Bible.
After the Supreme Court’s 1954 Brown v. Board of Education decision unanimously ruled that racial segregation of public schools was unconstitutional, Southern states engaged for years in “massive resistance” before the federal government stepped in. But so far, Cochran said, the presidency itself has never bucked the Supreme Court in such a way.
“Now it’s just both sides flexing their muscles,” Cochran said, “and a question of whether the umpires are going to make a decision and whether it’s going to be enforced.”
Joseph Griffith, a history and political science professor at Ashland University, said the current administration’s desire to expand presidential power will have ramifications not just for the next four years but potentially for future administrations as well.
“Whatever means are used by the current administration are going to be used by the next,” he said.
Trump’s move to withhold congressionally appropriated foreign aid, for example, could embolden a future White House to withhold congressionally directed funds to departments or policies that have fallen out of favor.
The seeds sown now may result in chaos down the road, Griffith predicted: “We are going to see laws that turn on and off like a light switch.”
While the current legal fights can feel unprecedented to Americans, Cochran noted that abuse of power and implications of lawlessness are timeless—just look to the Old Testament.
Government officials, Cochran said, should take note of Micah 6:8, particularly the last exhortation to “walk humbly.” They should “avoid imposing their view of justice and mercy on other people and other branches of government unless they have the authority to do so.”
