The Constitutional Crisis of 2025 with Prof. Alexander Keyssar

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Larry (00:07):

You are listening to specifically for Seniors, a podcast designed for a vibrant and diverse senior community. I'm your host, Dr. Larry Barsh. Join me in a lineup of experts as we discuss a wide variety of topics that will empower, inform, entertain, and inspire as we celebrate the richness and wisdom of this incredible stage of life.

Larry (00:40):

One cannot watch the news or read a newspaper without hearing the words constitutional crisis. There's so much confusion about what's really going on. I invited Professor Alexander Keyssar back on the podcast to help us understand what a constitutional crisis is, and whether we are in the midst of one. Alexander Keyssar is the Matthew w Sterling Jr. Professor of History and Social policy, and historian by training. He has specialized in the exploration of historical problems that have contemporary policy implications. Professor Keyssar chaired the Social Science Research Councils National Research Commission on Voting and Elections. And he writes frequently for the popular press about American politics and history. His book entitled, why Do We Still Have? The Electoral College is published by Harvard University Press. Thanks for coming back on specifically for seniors, Alex.

Alexander Keyssar (01:57):

Well, I'm happy to be here. I'm, I'm not happy with the circumstances that led us to reconvene, but it's good to be back in conversation with you

Larry (02:05):

In the, in the same vein, I think I'm in the same position as many of us who are sort of news junkies. Can you help us out with understanding what a constitutional crisis is?

Alexander Keyssar (02:23):

Well, I, I, I don't think there is an, there's an official definition of, of, of, of constitutional crisis or a universally agreed upon one, but I'll do my best, which is I, I think the, the one classic form, or the most classic form of a constitutional crisis is when a conflict presents itself, or there a conflict arises in governance to which there are no constitutional rules that will permit that will permit solving the crisis. There's no, there's no prior agreed upon procedure and process to bring a conflict to an end. The looming potential classic version of that would be if the Supreme Court were to tell the president of the United States that he can't do something and he were to go ahead and do it anyway. We have, we have no, we have no procedure to deal with that other than possibly impeachment of the, of the president.

Alexander Keyssar (03:35):

Another, a different version of constitutional crisis might be a situation where in order to resolve conflicts or to deal with a problem the government has to take steps that will effectively revise and alter the Constitution. And if that's done by you know, by traditional constitutional amendment means, or sometimes through the Supreme Court that would, you know, that can be okay. But there are other times when, you know, when that's not the case. Let me gi, let me give some examples, you know, of this. 'cause The constitutional crisis doesn't necessarily, in a sense have to be negative. When at the end of the Civil War, the, so the government passed in part because the southern states were not voting several different constitutional amendments. They abolished slavery passed the 14th Amendment, which among other things that everybody born here is, is a citizen. And then also went on to protect the rights of all citizens. And then the 15th Amendment, which in theory at least guaranteed the right to vote to people regardless of race. And those were constitutionally appropriate alterations to the Constitution to deal with changing circumstances on the ground, IIE the Civil War and the abolition of slavery. What we're facing, what we're facing now is a situation where where I think we're looking at the kind of constitutional crisis where there simply is not an agreed upon means of settling a dispute.

Larry (05:40):

So this leads me to ask, how do you view the first few weeks or month of the Trump administration as far as rules of law and, and constitutional problems?

Alexander Keyssar (05:57):

Well, I think I, I think I think if we're not in a constitutional crisis, we're very close to one and, and one is hovering around the edges, I think that one way in which I understand what's going on, and this has to do particularly in something, you know, your listeners may have noticed, which is the sheer number of acts that the administration has taken that are of questionable legality. I mean, there's just a lot of them. We could go, you know, we could, whether you want talk about ending birthright citizenship or the impoundment of funds, or in effect the unilateral destruction of regulatory agencies that were created by Congress many of which implicate the question of the power of the President versus the power of Congress and the power of the current president vis-a-vis previously passed laws.

Alexander Keyssar (07:00):

I think that part of what, you know, I think a question which arises is, well, why, why are they doing so much of this? Why, you know, why are there dozens of these executive orders? Why not pick your top two or three and go right at them? And I think that, I think the answer to that is that this is an attempt to both clog the courts and to intimidate the judiciary. This is a way of saying, we're gonna keep throwing these cases at you on one after another. Some of them barely nuanced from, you know, from, from, from others that, that, you know, that are also appearing. I mean, the lawsuits are also appearing as reactions to the executive orders. I mean, it's not that the, the, the Trump administration is not starting the lawsuits. It's that the people affected by the executive orders are suing.

Alexander Keyssar (07:56):

And I think that what the strategy is, is to create enough cases. I will lead the courts and ultimately the Supreme Court to compromise and to give because the court will, the court wants to avoid a kind of standoff with the President, where they take stances and the President says, no, I'm not gonna do that. What are you gonna do about it? They wanna avoid that. And I think they also on the other side, on the other side of the equation, I don't, I think they also don't wanna appear like they are simply the partisan agents of a president of whose party appointed most of them. So I think that what the strategy is to produce some wins among some, among some losses, and some of those wins will likely give the president significantly greater unilateral power than a president of the United States has ever had before.

Larry (09:03):

So that's one challenge to the constitutional requirement of three branches of government. That's the judiciary Now, in respect to the Congress,

Alexander Keyssar (09:19):

Right. Well, I mean, I, this this is being set up or structured in part by the fact that Congress is is completely inert or completely surprised, is doing is is doing nothing really. I mean, the majority, they can, the Republicans control both branches of Congress, as we've seen on many occasions, and saw very vividly at the president's address last night. The you know, Congress is simply acting as a cheerleader for the President, and remarkably, 'cause this is a Republican Congress, they are not they are not themselves objecting to the encroachment on congressional authority that the President is doing. And that would seem to be a very risky strategy for Republicans if they believed, and, and if they thought about it, that someday there might be a Democratic president and they, and that if they expand the power of the executive that will go to the Democratic president. But perhaps they don't think there will ever be a Democratic president again, again. But, but part, part of the mystery here is why Congress has been so completely quiescent.

Larry (10:42):

Why do they fear Trump so much? Is it just election?

Alexander Keyssar (10:49):

You know, I, I, I mean, I, I can't, IIII haven't had much in the way of personal conversations with Republican members of Congress recently. They certainly fear reelection. They fear being primaried. You know, the, the threat is out there and is overt that if you don't go along we will, we will primary you in in, in the next elections. And Elon Musk will give a ton of money to whoever is is running against you. So they fear that. There was a interesting suggestion in an interview that appeared with Mitt Romney about six months ago, where he was asked why why many so few members of Congress publicly objected to what the president was planning or what he had done. And he said, he said there was actual, actually some physical fear on the part of members of Congress for themselves and their family. They get threats when they speak out against the president or disagree with the president. They get threats, numerous threats and ugly threats, and that, that also has intimidated people.

Larry (12:06):

So he's put pressure on the judiciary and on Congress. What about the regulatory agencies that are left?

Alexander Keyssar (12:15):

Well, the, the regulatory agencies are are seem to be seem to constitute one of his major attacks. And the in, I mean, the, the stories are a little bit different with different agencies, but on the whole, these regulatory agencies were created to deal with issues that Congress and the presidents at the time belief would be, you know, would be ongoing issues. And that would be in many, in a sense, two detailed and time consuming for Congress to deal with by itself. I mean, the first such regulatory agency was the interstate, the creation of the Interstate commerce committee, which regulated railroads. And then you, you, that's comes at the end of the 19th century. And then you, 20 years later, you get the Federal Trade Commission in the thirties, the Securities and Exchange Commission, the National Labor Relations Board. And there are a bunch of these agencies that are created to to regulate different pieces of the economy.

Alexander Keyssar (13:23):

Now it's clear that Mr. Trump himself, and certainly the people around him, are fierce opponents of any kind of regulation. They, they basically think that that the regulatory state should be eliminated 'cause it interferes with their they're doing business and, and with their profit making. And there, you know, I mean Mr. Musk, for example, has several, several of his companies that are involved in disputes with regulatory agencies, but it's certainly not just Elon Musk. Now the, but these agencies were created by Congress in passage of laws that were then that were then signed by who, whoever was president. And they were, for the most part, given a structure that made them in a way, hybrids of executive and congressional oversight. They're created by Congress. The, the appointments are made to them are generally made by the president, but need to be approved by Congress.

Alexander Keyssar (14:39):

In some instances, the chair of a commission serves at the pleasure of Congress, but most members of these commissions are appointed for longer terms and for terms that are not, that are not four years, and do not coincide with presidential administrations. So the idea behind this design was to create regulatory commissions and regulatory bodies that would not be dramatically changing in their composition. Every time a new president was elected, and that would be bipartisan and reflected the voices of Congress, as well as voices in the executive branch is a design which has been pretty stable. And it provides for new membership of these agencies when, when, when a position becomes available, but it also guarantees a certain kind of institutional continuity. And the the Mr. Trump and the people around him just hate these agencies. And they are basically trying to either destroy them or neuter them by prevent by taking steps to prevent them from acting, for example, with the National Label Relations Board. They now the Trump fired illegally or it seems illegally, the chair of the board. And not only does does that matter because she was chair, but also now the, the board does not have a quorum and without a quorum, they can't take any official actions. And if the board can't take any official actions, then decisions by the administrators within the NLRB can't take effect.

Larry (16:36):

Well, what about non-regulatory agencies? Like, excuse me, like Noa, the NIH what's the intent there? Just to be different or just to express his own personal hatred of government?

Alexander Keyssar (17:00):

You know, I, the, the, I am, I'm as bewildered as you are, Larry, about that. I mean, why, why, why we want to sort of weaken Noah and the, the, you know, sort of or, or the NIH as an extreme is an extreme example, I think. I think there, I think in those two cases in particular, there is an anti-science and anti expertise thrust to this administration, which is playing out there. You know, why should the government pay paying the salaries of all these scientists? And the, the answer is so that we can have a more civilized society <laugh> and one in which diseases are dealt with. Or in the case of, of no, that a lot of ongoing problems that require some significant scientific knowledge to to solve can be addressed,

Larry (18:00):

Especially where it's the red states that have the biggest climate problems. I mean, like Florida, like, right. The Midwest with tornadoes.

Alexander Keyssar (18:15):

Yeah, no, no, exactly. And I think that people who live in areas where there are tornadoes really appreciate the fact that they get, that they get early warnings, were warnings as early as possible, and they will miss those warnings. If that occurs, I mean, another piece of the rationale for doing this is of course to simply cut the federal budget, but that's the, the proportion of the federal budget that is going to be diminished by all these firings is very small.

Larry (18:52):

For people my age especially, and probably the listeners here, the agency that that people are going to feel the worst is Medicaid.

Alexander Keyssar (19:06):

Yes. Well, there, there it's not, and it's not, you know, look, Medicaid is a re is a distributed program, a redistributive program to try to solve what was widely recognized in the mid 20th century as a severe problem, which was the sort of poverty of senior citizens or poor poverty of poor people, and the inability of poor people to get me to get medical care. And that this was something which was both unjust and also had a, had had effects on the rest of society. And but it caught, Medicaid is a costly program and they were, they are trying to cut back on on it. Now, again, it's a cost, it is a costly program, a lot of, I don't know what the number is, but it's a lot of billions of dollars. But it also does very important things.

Alexander Keyssar (20:03):

And it's not going to you know, it's, it is not getting rid of it is not going to change the economic or the financial health of the United States. I mean, again, we all, we also have to keep in mind on the, on on issues that have to do with budget and finances, that there's both a general approach to trying to reduce government expenditures. But there's a specific more short term issue here which has to do with bringing the budget down to levels that will justify the extension of the Trump tax cuts from his from his first administration. Those, those tax cuts which went overwhelmingly for the wealthiest members of the society are due to expire unless they are renewed and they can't be renewed unle due with the procedures of Congress they can't, they can't be renewed without keeping the overall federal budget at a level basically at the same level that it is now keeping the deficit at the same level it is now. Mm-Hmm <affirmative>. So part of the urgency here is to cut the federal budget ostensibly enough to justify ongoing tax you know, sort of reductions in taxes for the wealthy.

Larry (21:35):

Yeah. We, we touched on it a little bit before, but these challenges that this administration is setting up to democracy and the Constitution seem unprecedented in history, are they?

Alexander Keyssar (21:56):

It, it has, I mean, basically they are unprecedented and they are certainly unprecedented in terms of being as crises precipitated directly by the by the executive branch. The closest analogy for me, and it's not a very close analogy, but it is, it is an analogy, is what happened in the 1930s when Franklin Roosevelt was president, and in the first four or five years of the New Deal the Supreme Court pretty systematically throughout all of the major programs of the New Deal that were designed to deal to, to, to help people during the Great Depression and to try to stimulate the economy in ways that would that would help solve the Great Depression. And it was in response to that, and after his reelection in 1936, that Roosevelt unveiled this, his court packing scheme where he said that he, where the plan was that they would add new, new, just a new justice, I think it was for every justice over the age of 70 who had, who hadn't, who hadn't retired.

Alexander Keyssar (23:17):

I mean, you know, the, the fig leaf of a rationale for it was that they were going to reduce the workload of elderly justices. But that was, that was pretty transparently a fig leaf. What he was really trying to do was to say, look, we're in a, we are in a crisis. I'm trying to deal with the crisis. Congress and I are agreed about these various measures to deal with the crisis, and the courts are not letting it happen. So let's change the judiciary. Now, that would be, that would've been perfectly legal. There is nothing in the Constitution that says you have to have nine justices. It, it would've been perfectly legal, but it certainly would've been an exertion of presidential or executive power against the courts. So that was a looming, you know, kind of constitutional crisis. It was solved.

Alexander Keyssar (24:16):

The first indication of it being, basically, it was solved by the court capitulating and then retiring in a very important case involving the National Labor Relations Act. In fact, a justice who had voted consistently on the conservative side until then switched his vote on, on, in a case involving really much the same issues as he had voted the other way before. And that one vote permitted it to pass and modulated the crisis. And then a couple of the older conservative justices retired in a Roosevelt, was able to to, to appoint his own justices to to, to to, to the Supreme, to the Supreme Court. So that was a constitutional crisis that was of, that was sort of averted partly by one justice changing his mind, and then by other processes. But that, that's the closest parallel that I know of. I mean, you know, look, look, the Civil War represents a constitutional crisis too. I mean, when the, you know, when the armies of the Confederacy started firing shells at Fort Sumpter, which was a, you know, belonged to the federal government that's a crisis, also <laugh>. But and that crisis did not turn out very well.

Larry (25:41):

Well, essentially, Trump, without increasing the number of justices, is essentially packing the Supreme Court as well.

Alexander Keyssar (25:50):

He has packed the Supreme Court in advance

Larry (25:53):

With young justices injustices, with no termination of their periods of serving as justices

Alexander Keyssar (26:04):

That That's right, that's right. And, and with the likelihood that, I mean, the most likely person to retire on the court in the near future is probably Clarence Thomas, but then he would be replaced by another conservative.

Larry (26:19):

You mentioned Elon Musk's name before. Is, is his position in the government with the extent of access to data that he has, even legal?

Alexander Keyssar (26:34):

I'm not a lawyer, so I can't comment on that, but I, I think that's gonna be decided by the court. It certainly strikes me as, as not being legal. I'm sure there, you know, there, there are laws governing the confidentiality of data and who is, who is, you know, who is able to access it, et cetera, that I'm sure are being violated. Now, tho those laws can be challenged and can be contested. And, and, and they will be. And they are. I mean, it's, you know, it's to, to to to, to sort of grant the benefit of a doubt legally, and again, I speak not as a lawyer, but as someone who's occasionally plays one on television. But you could imagine, we could imagine a situation of a national emergency in which it was decided that it would be that it would in fact, really benefit the government and the people to give access to data to some group of, of folks who did not have access before. I mean, I can, in theory, I can imagine that

Alexander Keyssar (28:09):

You know, especially in some kind of international crisis, and if we were being attacked and we're trying to figure out where stuff is coming from but this isn't that kind of national emergency, this <laugh> this, this is simply a political onslaught. So I don't, I don't see any, any rationale. I, you know, I think that I think that what we're seeing in this case is a very particular strategy of Musk and other peoples from the high tech world, which is that, you know, and, and they have experience with this, with the acquisition of, of private corporations, you know, and companies, which is that you get a, get a hold of the computer systems, get a hold of the data systems and look, you know, and then try to use those systems as a way to alter what's being done or to fire people.

Alexander Keyssar (29:02):

It, it's it's a way of thinking that you and I, and most of our listeners, you know, do not immediately gravitate towards. I mean, when I think if, if you asked me how would I want to cha go about changing the university where I teach, my first reaction would not be to let's go get, let, let me get the data on the payroll of everybody, or on the backgrounds or appointments of everybody. I'd want to go investigate and see what was happening. And, but but these folks from high tech, they're from the tech world, they think in terms of the technology is the angle in, and the approach to changing

Larry (29:50):

And, and the visualization of Trump of I'm sorry, the visualization of Musk with a chainsaw just awful, and his kid in the Oval Office as the center of attention.

Alexander Keyssar (30:12):

Look, just,

Alexander Keyssar (30:14):

You know, you couldn't make this stuff up. It's, I guess, the most, you know I mean, it, if you shot this as a movie, it would seem like too implausible a cartoon. I mean, Musk seems like a I mean, whatever his talents may be, he seems like a kind of badly behaved child who has a insatiable need for attention of one sort or another. Mm-Hmm <affirmative>. And, you know, the, the chainsaw is an assertion of his power and his power of people not in the room. You know, I, I just I, I found it interesting, and I know at least one television commentator did last night after the speech. I found it interesting that that Trump acknowledged and recognized Musk and his role and celebrated his role, you know, last night since this was really a state occasion and officially at least Elon Musk is not part of the state.

Larry (31:26):

And, and then there was the condemnation by a senator or a Congressman. Zelinsky didn't wear a suit, and Musk was in the Oval Office in a t-shirt and some coat or something, right. Wearing a hat. I, it just, the whole scene isn't right.

Alexander Keyssar (31:49):

No, it's not right. It's, it, there's something all out of focus and deeply disturbing about it.

Larry (31:57):

So how do we get out of this? What do we do? Is there any solution? I mean, the judiciary isn't gonna do much. Congress doesn't seem to stand up for themselves. They don't seem to have a voice anymore.

Alexander Keyssar (32:20):

Well, y you know, I mean, if, if I had a solution, I would be out hawking it on, on the, you know, on, on the street corners or spreading it widely. I mean, what seems, you know, there seemed to be two different strands of mainstream thought about this. One is expressing the hope for which there's some evidence, but not a lot yet that that Trump will overreach or that he has already overreached, and that that will generate some resistance among Republican members of Congress which will lead to things calming down and slowing down and becoming saner and steps, having more limited effects. The other approach is people thinking about the 2026 elections and saying, well, you know, that's what we have to do. We have to just make sure that we get a hold of con majority in Congress in 2026. That's possible. Also, I think that that also raises

Alexander Keyssar (33:44):

That raises an a a very important question to me. And, you know, as you, as you know, I mean, I I, you mentioned my book on the electoral college, but I also wrote a book a couple of decades ago about the history of the right to vote. And I've been involved in voting rights issues for the last 25 years that may both as an activist as well as a scholar. I think that we have to expect that there will be greatly accelerated efforts to make it more difficult for some people to vote in 2026. I think that if the polls indicate as they may well that the Republicans are not likely to do well in the 2026 elections, then I think that there will be a, that the, our ability to have a free and fair election will be very much in doubt.

Larry (34:41):

Before we close this discussion, just one other thing I'd like to briefly touch on. And that's with universities and, and education in this country. Vance gave a speech titled The universities Are the Enemy. Trump is targeting academia. What's going on at the colleges from someone who is at the colleges?

Alexander Keyssar (35:18):

Well, it, it's actually been, it's actually been somewhat interesting. The, the, to my knowledge, there have not been enormous protests at the colleges. The pro, you know, protests there are, are, you know, are,

Alexander Keyssar (35:32):

Are not aimed at the universities. You know, there's an attempt to stir the pot by raising up issues about DEI and antisemitism, et cetera. The threat, the threat right now to the universities is budgetary. And it's partly political. I mean, partly there's such that, you know, you'll lose all your money if you have DEI et cetera. But there are you know, but, but, but there are also other, you know, things being talked about. I mean, like, what seems like an arcane thing, but the overhead rate that you can charge on grants et cetera. So there's this, there's this significant budgetary threat to certainly to major research universities. Now, those, those threats are not gonna affect all parts of a university equally. They will be, they will have their biggest impact in the sciences some impact in parts of the social sciences, but it's in the sciences, the medical schools where the big federal money has gone.

Alexander Keyssar (36:49):

And if the, if that money sort of is, is even, you know, cut by 25%, that will be a crisis Now that that may well have an impact on the rest of, of such an institution because they're gonna have to take money away from English departments, <laugh>, you know, but, but although they're not gonna find that much money there through the, you know, the subsidized scientific research. So I, I think on the one hand, there's a budgetary threat. I think it's also the threat is being held out there as a form of bullying to try to get university presidents and administrators and boards of trustees to to, to both do something about DEI and to acquiesce to the power of Washington.

Larry (37:49):

We could talk about this for <laugh> days and days and days, but is there anything that we should have covered and didn't?

Alexander Keyssar (38:00):

Well, I think we, we have to at least make mention even though our theme is constitutional crisis, et cetera, but I, I think we have to make mention that o of the very significant fact that in its first few weeks, this administration has completely upended our international posture and destroyed or undermined alliances with our traditional allies made the United States a a much less popular place in many parts of the world. Public opinion, you know, public opinion about about the United States in Canada is not high. And the same, you know, I mean, is, is, is, you know, it's plummeting. And the, the same is true in Europe. And

Alexander Keyssar (38:55):

This will have lasting consequences, and this will not be this will not be easy to recoup. You know, a democratic president coming in and making nice in 2028 is not going to quickly regain the trust and confidence of other countries around the world whose leaders may rightly fear well, okay, so you're a nice guy and you're ready to have more collaborative policies. But if we do that for another four years, and then another Trump is, is, is elected, then what? So I you can destroy trust very quickly. It takes many years to build it back up.

Larry (39:39):

Yeah. I, I, there's nothing to even say in response to that. Especially where there is apparently a, an affinity for dictatorship, for strong arm leaders for anti-democracy. Yeah. Alex, thank you so much for coming on and helping us understand what's going on.

Alexander Keyssar (40:17):

Well, I hope I've been of some help. It's a pleasure to talk to you, Larry.

Larry (40:20):

Thanks. Okay, thanks again.

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