SIDEBAR: The Unwritten Constitution Under Attack

Why America's informal rules matter more than ever

Photo by Markus Spiske on Unsplash

SIDEBAR is my occasional op-ed series on unfolding constitutional controversies. These pieces step outside the usual analysis to weigh in on the news of the moment.

President Trump’s decision to bypass the Senate and reinstall Alina Habba as interim U.S. attorney for New Jersey — after her nomination was rejected by a federal judicial panel and blocked by two senators — might seem like just another Washington power struggle. But this episode, along with the administration’s defiance of court orders on deportations and punishment of reporters for unfavorable coverage, reveals a concerning pattern that more and more observers see as a systematic erosion of the unwritten rules that make American democracy work.

These aren’t mere political norms or Washington etiquette. They are constitutional norms — the informal expectations that translate the Constitution’s broad text into actual governance. For over two centuries, these unwritten rules have filled the gaps the framers couldn’t anticipate, ensuring that presidents comply with court orders, respect the Senate’s confirmation role and avoid punishing the press for critical coverage. Their breakdown threatens the legal protections every American depends on.

The framers designed our system knowing they couldn’t draft rules for every crisis. George Washington and his contemporaries relied instead on good faith, restraint and habits of compliance to make the Constitution work. The document’s deliberate ambiguity wasn’t a flaw but a key feature, and it depended on leaders respecting the system even when breaking it might offer short-term advantage.

These informal guardrails have been tested before, sometimes severely. Lincoln suspended habeas corpus during the Civil War. FDR threatened to pack the Supreme Court and authorized Japanese internment. Nixon defied congressional subpoenas during Watergate. Reagan’s administration circumvented Congress during Iran-Contra. The Bush administration expanded surveillance and detention powers after 9/11.

Alina Habba speaks after being sworn in as interim U.S. Attorney General for New Jersey, in the Oval Office of the White House in Washington, on March 28, 2025. | Associated Press

In each case, constitutional norms ultimately reasserted themselves. Lincoln’s emergency measures ended with the war. FDR retreated from court-packing when public opinion turned against him. Nixon resigned rather than face impeachment. Iran-Contra led to prosecutions and congressional reforms. Post-9/11 overreach faced judicial pushback and legislative constraints. Even when presidents pushed boundaries, violations carried political costs and triggered corrective responses that reinforced the system’s limits.

In the Trump administration, we are seeing an inverting of this incentive structure. Rather than facing political costs for norm-breaking, the president has discovered that defiance energizes his base. Rather than an unfortunate necessity, dismissing constitutional expectations seems almost to have become a deliberate tactic. This transforms violations from exceptions that prove and further reinforce the rule into a continued erosion of the rules themselves.

The consequences extend far beyond Washington power games. Presidential appointments of prosecutors without Senate oversight undermine the independence that protects citizens from politically motivated investigations. Executive defiance of court orders signals that legal protections are negotiable, weakening remedies for everyone from immigrants facing deportation to citizens challenging government overreach. And punishing journalists for critical coverage chills press freedom and deprives voters of the independent information democracy requires.

Not every constitutional norm deserves preservation. Some have protected injustice —for example, Senate “courtesy” rules that allowed Southern senators to block civil rights legislation for generations. The mere existence of a tradition doesn’t make it sacred. But there’s a crucial difference between reforming norms to promote equality and discarding them for partisan advantage. Thoughtful reform strengthens constitutional governance; systematic violation hollows it out.

Conservative Judge J. Harvie Wilkinson captured this distinction in his recent opinion critiquing the administration’s defiance of a Supreme Court order. Judge Wilkinson contrasted this current resistance unfavorably with Eisenhower’s decision to send federal troops to enforce desegregation — a case where a president accepted judicial authority despite enormous political risk. Supreme Court Justice Elena Kagan has similarly warned that defiance of court rulings erodes public trust in the judiciary itself.

The framers left constitutional gaps because they assumed leaders would respect limits even when inconvenient. That assumption, once a strength of American democracy, now looks like a vulnerability. If bypassing confirmation processes, defying court orders, and punishing critical coverage become routine political moves, then the Constitution’s unwritten rules become no rules at all.

What’s at stake isn’t just institutional dignity or democratic norms in the abstract. It’s whether Americans can count on legal protections when they need them most. Will courts have authority to stop government overreach? Will prosecutors be independent enough to follow evidence wherever it leads? Will journalists be free to report uncomfortable truths?

Constitutional norms exist to ensure these questions have reliable answers. Their erosion leaves citizens more vulnerable to the very government abuses the Constitution was designed to prevent. In a system where compliance with legal limits becomes optional, law becomes politics by another name — and the presidency escapes its constitutional constraints entirely.

The choice isn’t between rigid adherence to outdated traditions and necessary democratic reform. It’s between a constitutional system where informal rules reinforce legal protections and one where those protections depend entirely on the goodwill of whoever holds power.

Americans have confronted presidential overreach before, but never in a context where norm-breaking itself becomes politically rewarding rather than costly. The systematic nature of current violations — and the incentives that drive them — represents uncharted territory for American democracy.

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This piece was published at Deseret News.