“People generally use the term ‘constitutional crisis’ to describe periods when institutions of government are clearly in conflict,” Levinson and Balkin wrote. “But the mere existence of conflict, even profound conflict, cannot be the definition of crisis. … Conflict in a constitutional system is not a bug—it is a feature.”
Levinson and Balkin also make a distinction between “political” and “constitutional” crises, arguing that the Watergate scandal and the impeachment of Bill Clinton are best described as the former. Richard Nixon, for example, arguably had the authority to fire the Watergate special prosecutor and eventually complied with a Supreme Court order to hand over the Watergate tapes. “Nevertheless, it could easily have become a constitutional crisis at several points if Nixon had publicly stated (which he never did during his presidency) that he sought deliberately to go beyond his powers under the Constitution,” they explained.
Constitutional crises, Levinson and Balkin wrote, should be understood “not in terms of constitutional disagreement but in terms of constitutional design.” And there are three types of design failure:
1) Political leaders flagrantly violate the constitution, typically justifying the power grab as a response to an emergency that the constitution isn’t designed to address.
2) Political leaders faithfully follow constitutional provisions even though the provisions are badly designed, leading to disaster or political paralysis.
3) People or government institutions disagree so intensely on how to interpret the constitution that the struggle surpasses ordinary political conflict; the government might, for instance, use force to stifle mass protests.
Comey’s dismissal is not a constitutional crisis, argued Steve Levitsky, a professor of government at Harvard who recently co-authored an article in Foreign Affairs on why American democracy could erode during Donald Trump’s presidency. “Trump was completely within his constitutional bounds in doing what he did.”
When Ecuadorean President Rafael Correa effectively fired 57 opposition lawmakers, when judges loyal to Venezuelan President Nicolas Maduro stripped the country’s legislature of its powers, when former Peruvian President Alberto Fujimori wiped out rival branches of government—these were genuine constitutional crises, Levitsky, who specializes in comparative Latin American politics, told me.
Such clear-cut constitutional crises are the exception, however, according to Gretchen Helmke, a political scientist at the University of Rochester and co-director of the democracy-monitoring group Bright Line Watch. The recent impeachment of Brazilian President Dilma Rousseff, for example, was considered a subversion of democracy by her supporters and a sign of a well-functioning democracy by her critics—a situation that might have resulted in a Type 3 constitutional crisis had the standoff escalated.