Constitution Daily

Smart conversation from the National Constitution Center

Five Constitutional crises that actually existed

June 13, 2012 by NCC Staff


U.S. Attorney General Eric Holder has told the Senate Judiciary Committee that Congress risked a “constitutional crisis” if it asked him to turn over documents related to the Fast and Furious gun scandal. But is the situation really that dire?


Holder eventually downgraded his verbiage on Tuesday to call the situation a “constitutional conflict,” but the use of such strong language put a lot of people on attention.


Holder and some GOP lawmakers are locked in a bitter fight over sting operations run by the Bureau of Alcohol, Tobacco, Firearms and Explosives.


Under Holder’s term as attorney general, Operation Fast And Furious went tragically wrong, with guns getting into the hands of Mexican drug cartel members.


GOP Rep. Darrell Issa wants documents from Holder that might show the Justice Department mislead Congress. The Justice Department says the release of such documents could hurt on-going investigations.


Issa will pursue a contempt charge in a committee vote next week if Holder doesn’t comply with his requests.


So is this really a constitutional crisis? It doesn’t appear so by the strict definition, since the federal government, the executive branch, Congress and the Supreme Court will keep functioning if Holder and Issa can’t compromise.


In past squabbles between the Justice Department (which is part of the Executive branch) and Congress, figures such as Karl Rove, Janet Reno and Henry Kissinger were threatened with contempt charges. The situations were resolved at some later point.


Here’s a brief look at five situations that were real constitutional crises, which tested the foundations of the Constitution and changed it, in some ways.


A president dies in office (1841). The newly inaugurated President William Henry Harrison dies just 30 days after taking the office. The Constitution wasn’t clear on what happened next, just specifying that Vice President John Tyler assumed the duties of the president. But was Tyler the president or the acting president? The 25th Amendment in 1967 eventually settled the succession debate.


States decide to leave the union (1861). Upon the election of Abraham Lincoln, southern states started leaving the union before Lincoln’s inauguration. It took the Civil War to settle the question of succession.


States can’t agree on the presidential election (1876). The presidential election between Samuel Tilden and Rutherford B. Hayes came down to four states (including Florida), which couldn’t agree on votes in the Electoral College. The actions of a special commission of Congress and Supreme Court members headed off a constitutional crisis, as Hayes took the election by one electoral vote.


The Watergate affair (1972-1974). The scandal involving Richard Nixon’s re-election campaign, the existence of incriminating recordings and claims of executive privilege made it all the way to the Supreme Court. In July 1974, the court ruled that Nixon must hand over the tapes. He complied and then resigned as president.


Bush vs. Gore (2000). In a historic replay of the 1876 election, the Supreme Court ruled that the votes in Florida weren’t subject to a recount, giving George Bush a razor-thin win over Al Gore.


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