David J. Dreyer: Is it a constitutional crisis? Or just a stalemate?

In 1927, the Teapot Dome Scandal rocked the United States government.

A corrupt Interior Secretary accepted bribes from oil companies to gain leases to reserves in Teapot Dome, Wyoming. The sitting U.S. Attorney General refused to investigate and arranged for money to be laundered in an Ohio bank where his brother was president.

When Congress sought the bank president’s testimony, he refused. The Congress Sergeant-at-Arms was sent to arrest him in Ohio. The Supreme Court ultimately upheld Congress and established its power to compel testimony.

In 1974, the Watergate controversy reached its dramatic peak when President Richard Nixon refused Congress’s subpoena for Oval Office recordings by claiming executive privilege. At the Supreme Court, Congress won again, and Nixon resigned.

In 2025, there is spirited discussion on all sides about whether we are undergoing a “constitutional crisis,” comparable to past historical examples.

Some say that executive branch actions are beyond its authority, if not clearly unlawful. There are claims that the rule of law is being usurped. A recent article surveyed legal scholars and found “wholesale ultra vires executive-
branch impunity.”

Some courts have ruled in cases that have largely stopped or slowed the executive branch so far. That has prompted the White House to claim that the courts are causing a constitutional crisis by ruling against it.

Overall, all branches of government are embroiled in an ongoing roller coaster ride to figure out what each branch can or cannot do. It is growing among federal and state governments.

Judges and lawyers everywhere live by the creed of constitutional law. Power is derived and explained by this bottom-line authority. But what if the branches do not agree, and there is no ready constitutional answer?

That is what some might call a “constitutional crisis.” Many say that it is the courts that will ultimately resolve these controversies about power. But what if the courts are not obeyed?

Professor Michael Kreis of Georgia State University recently pointed out that there are many presidents who have ignored rulings in past narrow issues. But, he says, “you don’t just dispense with Congress or ignore laws that are on the books, and it’s not at the whim of executive orders.”

Looking at the Watergate crisis, there was not a constitutional crisis, at least not by the most common definitions. Most observers agree that, according to Professor Jessica Levinson of Loyola Law School, that if an “administration starts to ignore decisions by federal judges, that is the definition of a constitutional crisis . . . It means one branch is ignoring a coequal branch. That’s when there is a three-alarm fire.”

In Watergate, all branches were working together. The president declared a legal position, but submitted to the coequal power of the Supreme Court.

So discussions today may have to revolve around a basic question: when is there a constitutional crisis, and when is there just a stalemate (a situation in which further action or progress by opposing or competing parties seems impossible)?

Over our history, the executive branch and Congress disagree all the time, and sometimes that means nothing gets done. But when the executive branch acts without Congress, in spite of Congress, or ignores it, then that raises the possibility of a crisis.

To be sure, we judges and lawyers will be at the epicenter of the crises. It will be beneficial to develop an engaging perspective about when a case is a crisis or just a stalemate.

But what is most worrisome is the overt tactic of attacking the legitimacy of the courts:

• “Judges aren’t allowed to control the executive’s legitimate power.” (Vice President J.D. Vance)

• “We want to weed out the corruption. And it seems hard to believe that a judge could say, we don’t want you to do that. So maybe we have to look at the judges.” (President Donald Trump)

• “These unlawful injunctions are a continuation of the weaponization of justice . . . the real constitutional crisis is taking place within our judicial branch.” (current White House Press Secretary Karoline Leavitt)

• “I think the courts should just step back and allow these processes to play out.” (current House Speaker Mike Johnson)

• “We should at least ATTEMPT to fire this junky jurist . . . [and begin an] immediate wave of judicial impeachments.” (Elon Musk)

Attacks on judges are unfortunately not unique.

On one hand, it is convenient to publicly blame a judge, who cannot respond in kind, to take blame off yourself.

But on the other hand, it is dangerous to maintain a public strategy of convincing the public that judges and courts are not legitimate. This intentionally affronts the public confidence of the justice system, and our whole rule of law.

Judges are obligated to be the stewards of the law, apart from the other branches, apart from public pressure, apart from public opinion polls and popularity contests, even apart from what they might personally prefer.

As we confront the growing challenges about whether a case is a “constitutional crisis,” or just a stalemate, we must be ever vigilant to fight off all attempts to devalue our courts and the judicial branch of government. There is no other alternative.•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association.