There’s nothing that annoys me much more than the lazy habit of justifying bad conduct by the claim that “everybody does it,” particularly when the conduct in question is egregious. That’s why policing political false equivalence claims is important, so I wrote a ticket for John Letterman at New York this week.
One thing most of Donald Trump’s minions and their bitterest Democratic enemies agree about is that a constitutional crisis is brewing as the new administration asserts the right to remake the federal government by executive fiat (either via presidential executive orders or by power delegated to Elon Musk’s DOGE operation) and federal judges begin to push back. Most Democratic politicians, particularly in Congress (which is in danger of losing its control over federal spending priorities entirely), are using pretty stark language about the constitutional implications of Trump 2.0. Here’s Senator Ron Wyden in an interview with my colleague Benjamin Hart:
“The Founding Fathers said, ‘Look, here’s what Congress does. Here’s what the president does.’ This is what we have enjoyed for all of these years, and it has been something that has served us well. And now you have somebody in Elon Musk, who basically paid for an election, coming in and saying he runs everything. If you have unelected individuals breaking the law to take power, that about fits the definition of a coup.”
Meanwhile, Team Trump is arguing it’s the judges that are engaged in an attempted coup, as NPR reports:
“’The real constitutional crisis is taking place within our judicial branch, where district court judges and liberal districts across the country are abusing their power to unilaterally block President Trump’s basic executive authority,’ White House press secretary Karoline Leavitt told reporters during a briefing on Wednesday.
“Leavitt called the orders that federal judges have made against the administration’s agenda a ‘continuation of the weaponization of justice’ against Trump.”
Musk has called for an “immediate wave of judicial impeachments” to dispose of obstacles to his ongoing rampage through the federal bureaucracy.
But there’s at least one vocal dissenter from this consensus: Wyden’s Democratic colleague John Fetterman, who is basically saying there’s nothing to see here we haven’t seen before, as HuffPost reports:
“’When it was [President] Joe Biden, then you [had] a conservative judge jam it up on him, and now we have liberal judges who are going to stop these things. That’s how the process works,’ Fetterman told HuffPost on Wednesday, referring to nationwide injunctions of Biden’s policies by conservative judges during his presidency.
“The Pennsylvania Democrat called Musk’s actions shutting down agencies and putting thousands of workers on administrative leave without congressional approval ‘provocative’ and said they are ‘certainly a concern.’
“However, the senator rejected claims from others in his party about the country facing a constitutional crisis.
“’There isn’t a constitutional crisis, and all of these things ― it’s just a lot of noise.'”
Fetterman has taken a decidedly cooperative tack toward Trump 2.0 from the get-go, calling on Joe Biden to pardon Trump to get rid of his hush-money conviction, joining Truth Social, and making positive noises about DOGE (at least in its pre-inauguration form). But he’s opposed confirmation of Trump’s most controversial nominees, including Pete Hegseth, Russell Vought, Robert F. Kennedy Jr. and Tulsi Gabbard. His latest comment seems to suggest he’s carving out a role for himself as a Democrat who is not at all onboard with what Trump is doing but rejects any hyperventilation about it. At a time when most Democrats are under considerable grassroots and opinion-leader pressure to make more rather than less of what Fetterman calls “noise,” it’s quite the outlier position. Yes, he’s a Democrat who will be running for reelection in 2028 in a state Trump carried in 2024, but given what’s going on in Washington right now, 2028 seems far away and there’s no telling what the people of Pennsylvania will think by then.
From a substantive point of view, Fetterman’s “everybody does it” take on Trump/Musk power grabs isn’t terribly compelling. Yes, the Biden administration criticized the band of right-wing federal judges (mostly in Texas) to which conservatives resorted in battling Democratic legislation and presidential executive orders, and also criticized the conservative majority on the Supreme Court for its ideologically driven decisions, particularly the reversal of Roe v. Wade. There was even talk in Democratic circles of actions to restructure the Supreme Court (inevitably referred to as “court-packing” in an allusion to FDR’s failed 1937 proposal to expand the size of the Court) in various ways. But “court-packing” never got beyond talk, and in any event, Democrats notably did not talk about flat defiance of judicial orders as Musk and J.D. Vance, among others, are doing right now.
There are legitimate differences of opinion about exactly how far Team Trump has progressed down the road to a “constitutional crisis” over the relationship between the executive and legislative branches. Maybe strictly speaking we are dealing with a potential constitutional crisis that will formally begin the minute the administration openly refuses to comply with a judicial order. But where Fetterman is doing a disservice to the truth is in implying that the imminent threat — if not the reality — of an engineered constitutional crisis is just the same-old same-old that every recent administration has pursued. That approach normalizes this self-consciously revolutionary regime and also its worst impulses and excesses.
