Trump is igniting a constitutional crisis — and it could doom the US to becoming a failed state

Published May 28, 2020 By Bill Blum, Independent Media Institute

There are no universally accepted definitions of either a “failed state” or a “constitutional crisis.” Good arguments can be advanced, however, that we are suffering from both disorders at the state and national levels in the midst of the lethal COVID-19 pandemic.

In a May 19 article, Guardian columnist Nathan Robinson argues that Wisconsin is beginning to resemble a failed state, which he defines as “one that can no longer claim legitimacy or perform a government’s core function of protecting the people’s basic security.” The Wisconsin GOP, Robinson writes, is a minority party, but after years of extreme gerrymandering, it wields de facto dictatorial powers, enabling it to gut public-sector unions and advance the privileges of business interests and the wealthy.

The failed nature of Wisconsin governance, according to Robinson, was graphically displayed on May 13, when the conservative Wisconsin Supreme Court overturned Democratic Governor Tony Evers’ coronavirus “stay-at-home” orders. The ruling came in a lawsuit brought by the state’s GOP-controlled assembly and senate. It allowed patrons to crowd into bars, restaurants, and other venues without any social-distancing restrictions whatsoever.

The people of Wisconsin, by and large, are no fools. Like people everywhere, they want a return to normalcy, but they are also concerned about recklessly reopening the economy. A Marquette University poll released on May 12 found that 69 percent of residents supported the governor’s policies, which were designed by the state’s top public-health officials. The policies were also backed by the ACLU, which saw them as vital for the protection of minority communities that have been devastated by COVID-19.

The net result, in Robinson’s view, is this: “The more that Wisconsin Republicans act to impose their will unilaterally without regard to the safety or will of the people, the less we should treat Wisconsin as a functional government.”

But what about the country as a whole under the Trump presidency?

In a longer and even more scathing article published in the June issue of the Atlantic magazine, George Packer contends that the U.S. has crossed the failed-state threshold. Packer’s language and observations are jarring, even for the Trump era.

“When the virus came here,” he begins, “it found a country with serious underlying conditions, and it exploited them ruthlessly. Chronic ills—a corrupt political class, a sclerotic bureaucracy, a heartless economy, a divided and distracted public—had gone untreated for years. We had learned to live, uncomfortably, with the symptoms. It took the scale and intimacy of a pandemic to expose their severity—to shock Americans with the recognition that we are in the high-risk category.”

Packer continues:

“The crisis demanded a response that was swift, rational, and collective. The United States reacted instead like Pakistan or Belarus—like a country with shoddy infrastructure and a dysfunctional government whose leaders were too corrupt or stupid to head off mass suffering. The administration squandered two irretrievable months to prepare. From the president came willful blindness, scapegoating, boasts, and lies. From his mouthpieces, conspiracy theories and miracle cures…

“Every morning in the endless month of March, Americans woke up to find themselves citizens of a failed state. With no national plan—no coherent instructions at all—families, schools, and offices were left to decide on their own whether to shut down and take shelter.… Russia, Taiwan, and the United Nations sent humanitarian aid to the world’s richest power—a beggar nation in utter chaos.”

The extent of the chaos and the scale of our national shame cannot be understated. The U.S., with 4 percent of the world’s population, accounts for roughly 29 percent of worldwide COVID-19 fatalities. The raw numbers are breathtaking, as more than 100,000 Americans now have died from the virus. By comparison, a total of 58,220 Americans died in the Vietnam War.

Meanwhile, guided by his goal of winning another term at all costs, the president has pressed states to fully reopen despite the continued uptick in coronavirus cases in Georgia, Alabama, Arkansas, California, and elsewhere. Given the highly contagious nature of the virus and its propensity for exponential growth, it may only be a matter of time until a dreaded “second wave” of infection emerges and sweeps across the entire country.

Packer correctly blames Trump’s epic incompetence, dishonesty and corruption for the catastrophe that has already unfolded and the miseries yet to come. He accuses the president of immolating what was left of our national civic life prior to his election, and sharply dividing Americans along the lines of race, nationality, and religion.

Even if it may be premature to join Packer in labeling the U.S. a failed state, it’s not too early to cite Trump for igniting a constitutional crisis that could eventually lead to failed-state status. Legal scholars such as Princeton University professor of politics Keith Whittington tell us that constitutional crises fall into two general categories: “operational crises,” which occur when vital political disputes can’t be resolved within the existing constitutional framework; and “crises of fidelity,” which happen when a major political actor no longer feels bound by constitutional norms.

We’re beset by both kinds of crises today. As Harvard University Law School Professor Noah Feldman explained in an October 2019 New York Times op-ed, penned on the eve of Trump’s impeachment by the House of Representatives, Trump’s abiding lawlessness means that “we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.”

Since his acquittal by the Senate, Trump has upped the constitutional ante, defying congressional subpoenas, firing inspectors general from several executive-branch departments, arguing before the Supreme Court that he enjoys “absolute immunity” from state criminal investigations, and stacking the federal judiciary with right-wing ideologues. Assisted by Attorney General William Barr, who has transformed the Justice Department into a partisan enterprise, Trump has taken his place in an exclusive rogues’ gallery of past commanders in chief who have wreaked havoc on the constitutional order.

Historically, Trump is following in the footsteps of Andrew Johnson, who precipitated a constitutional crisis in his showdown with the Reconstructionist Congress that ended with his impeachment and near removal from office. A little more than a century later, Richard Nixon triggered another over Watergate that ended in his resignation in the face of near-certain removal.

The nation’s most damaging and far-reaching constitutional crisis, of course, and the one that nearly sealed the fate of the U.S. as a permanently failed state, was the Civil War. Although some commentators have argued that we are in the early stages of a new civil war, fueled by Trump’s malignant narcissism, his frequent use of white-nationalist rhetoric, and the corrosive effects of the pandemic, our hostilities have not yet degenerated into overt bloodletting in the streets.

But will the discord remain peaceful? Armed anti-lockdown protesters stormed the Michigan statehouse in April and May, and a prominent anti-lockdown leader in North Carolina has vowed to resort to violence, if necessary, to achieve the movement’s aims. Predictably, the president has done nothing to deter their demonstrations or tone down their heated rhetoric.

Trump isn’t the first power-hungry American president, or the first racist to occupy the Oval Office, or the first to promulgate incendiary lies, large and small, to manipulate his supporters. But unless he is defeated in November, he may prove to be the most dangerous and, worst of all, the deadliest.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.