Stop sharing the Slate piece “Trump Has Suspended Due Process for Muslims in America. This Is a Constitutional Crisis” by Mark Joseph Stern. It’s not. And its dangerous to say it is.

I agree with the main point raised by the piece:

There are serious constitutional problems with Trump’s executive order as a whole, including its preference for one particular religion (Christianity) and its denigration of another (Islam). The courts will debate these questions over the coming months. But for Alshawi and others like him, there is a more immediate concern: a complete and total lack of due process. As a chilling American Civil Liberties Union lawsuit filed Saturday demonstrates, Trump’s executive order has led to the flagrantly unconstitutional detention of perfectly legal immigrants whose lone crime is their national origin and religion. It is not just morally wrong. It is illegal.

All of that is correct. However, at the end Stern claims, “What is happening today is a constitutional crisis,” without offering an justification for that claim. Irresponsibly, his editor seized on those words (rather than challenging or deleting them) for the headline. Not only is the assertion unproven, it cannot be proved.

A Constitutional Crisis is when the Constitution ceases to function as intended. It was intended that Presidents offer Executive Orders to interpret laws passed by Congress. It was, of course, hoped that they would not violate due process or any other aspect of good governance, but our founders did not imagine that it could not happen. In such a case, one can petition the courts and request relief. That appears to be what is happening. This is an active story, and it may become a Constitutional crisis if The President takes steps to ignore the stays*. But it is not a Constitutional crisis at present.

There may come a moment when we are facing an actual Constitutional crisis from this President and it is vital that the charge have credibility. This executive order is heinous, but the Constitution appears (so far) to have constrained The President as intended. This is not to say that it wasn’t a crisis more broadly or that you should not be alarmed. But it gets way worse than this.

If it does, we need people to believe us.

*There are early reports of officials refusing to follow the order, but until they are substantiated and shown to be part of a broad strategy, they are not a full-on Constitutional crisis. Further, these reports post-date the Slate article, so Stern was still being reckless even if the worst comes to pass.



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