Two words I heard and read repeatedly in the past week: “Constitutional Crisis.”

I’ve heard TV pundits say it, columnists, Congress members, even the White House press secretary, all speculating that we are near or already in the throes of a constitutional crisis.

As President Donald Trump issues an unprecedented number of executive orders, a serious debate has begun over whether he is just testing the boundaries of his power or triggering a full-blown challenge to the constitutional separation of powers.

Many Democratic leaders, including our own state attorney general Phil Weiser, believe he is overstepping his legal bounds and encroaching on the powers of Congress and the states, while the White House believes there is a crisis because of “activist judges” getting in the way of what voters want the president to legitimately do.

So I turned to a constitutional scholar to help answer what constitutes a crisis, whether or not the past few weeks qualify as the beginning of one, and most interestingly, why we’re here.

Andrea Katz teaches at Washington University School of Law in St. Louis and specializes in constitutional law, with a focus on presidential power. She’s got both a doctorate in political science and a law degree from Yale and writes extensively on the history of the presidency.

“This is Article 2 versus Article 1,” Katz said. “Article 2 of the Constitution sets up the presidency, Article 1 sets up Congress.”

For some time, since Nixon’s presidency, Katz said, a new form of legal argument has been building called unitary executive theory, which is an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House.

The essential argument is that Article 2 beats Article 1; presidential power beats the power of statutes.

We first saw this argument under President Richard Nixon, the idea that the president has powers that are above a statute, Katz said. “You see it build up under Reagan and eventually the Supreme Court buys into this, too.”

In the courts, judges have ruled more and more that Article 2 beats Article 1 in certain contexts, such as the firing of executive branch employees, Katz said. “They’ve said it when it comes to foreign, diplomatic issues. And they’ve definitely said it when it comes to presidential immunity. The idea that the president has immunity, is above criminal law, means above statutes.”

“I think Trump is the first president who’s really using executive orders to fly in the face of a statute. And now he’s got a legal argument that says that in certain cases he’s allowed to do that. And so I think this is really all kind of a big performance for the courts to see how far along they go with it.”

In other words, Trump is stress-testing the courts to see if he can change some of the norms of presidential power, but whether he directly defies the courts remains to be seen.

Katz doesn’t believe this all becomes a constitutional crisis until Trump actually defies a U.S. Supreme Court ruling.

“I think a constitutional crisis would look like … if a Supreme Court ruling couldn’t be enforced because the president has told the marshals qnot to do it. I think that would be a crisis.”

And what would happen?

“Probably nothing,” Katz deadpanned.

A contempt-of-court ruling could be issued, but a president isn’t going to jail over a contempt-of-court ruling, because the Supreme Court has already established that a president can’t be criminally charged while in office.

I pointed out that a federal judge did order the administration to unfreeze federal loans and grants for things like medical research and then a few days later, the judge said those funds are still frozen, which looks an awful like defying a court order. But Katz said that case is still playing out and hasn’t reached a conclusion yet.

Lower officials who actually violate an order might go to jail though, Katz speculated, like Elon Musk.

Overall, it looks like Trump’s assertion of power might be successful in some areas and not in others.

I asked Katz about four different buckets his executive orders fall into: executive branch hirings and firings; freezing or impounding funds appropriated by Congress; birthright citizenship; and national security and immigration.

On executive branch firings, the history goes back to 1883 and the Pendelton Act, which for the first time required our government officials to take merit-based exams. As Katz put it: “If you want to work in the Department of Agriculture, you should show that you know something about agriculture, right?”

So that means all those government officials in merit-based positions are protected from firing by a statute, Katz said.

“The court has already sort of expanded the firing power of the president to heads of agencies like the Consumer Financial Protection Bureau and this and that,” Katz notes. “So I think the question would be, does the [John] Roberts court have that appetite to expand the president’s firing power to include the civil service generally?”

She thinks the question will definitely end up before the Supreme Court.

As far as freezing federal funds, like the $570 million in grants that are due Colorado but hang in limbo now, Katz also says the law on this goes back to Nixon, who tried to impound federal funds for civil rights agencies, among other things. In a backlash to Watergate, Congress passed the Impoundment Control Act, which directly forbade such moves.

“It seems to me that on the text of that law, the Impoundment Control Act, what Trump is doing is illegal,” since Congress is explicitly given the power of the purse by the Constitution. “He is arguing in turn that that statute is unconstitutional, that the president as the chief executive has discretion over how funds get spent. And so I think again, this is another area, perfect illustration, where he’s trying to toss this up to the courts to get them to strike down that statute and therefore allow the executive total discretion to spend or not spend the way that he wants to.”

Stress-testing the law with the courts again, to see if he can get a change.

When it comes to the border, Katz points out that there are serious limits, such as the Posse Comitatus Act, on how the military can be used domestically for law enforcement purposes.

But when the president declares a national emergency, as Trump has on the border, “that sort of opens up a kind of Pandora’s box where the president now has more discretion to send up the National Guard.”

But Katz believes we’ll see legal challenges down the road about the way he’s trying to use the military. “There’s nuance there,” she said, “and real questions about that use.”

As far as birthright citizenship, Katz said Trump clearly has some very creative legal minds on his team who are arguing that it’s the executive branch’s job to interpret the law. “That’s what executing the law means, you have to have some people read the law and tell you what it requires and then make decisions about how you’re going to enforce it.”

“What’s new here is that he’s proposing an interpretation of the 14th Amendment that contradicts existing laws and judicial decisions,” Katz notes, including a Supreme Court decision that clearly states children born in the territory of the states are Americans.

So Katz believes, in this particular test case, the president is going to lose.

Overall, we’re not in a real constitutional crisis yet, it seems to me, but rather seeing a president trying to use his power to interpret laws to force change in existing interpretations of the law.

“How far that goes is a question which I don’t know the answer to, and that’s going to be in the hands of judges,” Katz said.

Regardless of where this all goes, Katz believes we’re in unprecedented times.

“When you bring together all those factors, I think it really does lead to a sort of perfect storm of the president governing unilaterally.

“I work on the history of the president. I don’t think the president has governed this way ever.”

So why is Trump doing all this?

“A president isn’t just one person, a president is a team of people,” Katz said. “So I think there are some people on Trump’s team that have been looking to shrink the size of the federal government for years. And I think technically, on the law, to shrink the federal government, you need Congress. You need Congress to pass a law getting rid of an agency. But Congress has been so gridlocked for years Trump doesn’t want to bother.”

Another reason you’re seeing such a raw assertion of power is that Congress has been getting weaker and weaker. “We’re not seeing things like the Civil Rights Act, these super-statutes like people used to call them. A lot of governing is happening through the executive branch. And I think partly there’s a justifiable reason there, which is that if Congress isn’t responding to crisis, the executive is doing it. Biden did that as well. I think Obama did that as well.“

I asked if a large part of it wasn’t Trump’s CEO personality, that he is just used to issuing orders and making things happen his way.

But Katz made the point that we’ve had other presidents who were just as used to people following their orders who adjusted to the rule of law.

“I think of George Washington, who was a general, and Eisenhower. These are people who expected to issue an order and people would obey, right? And in reality, the executive branch is kind of a little bit messier and more complicated.”

Ever the historian, Katz pointed out that General Washington governed very, very moderately. “Washington did not use his powers broadly at all. He was very, very deferential to Congress, despite having been a general. He was very much a rule-of-law kind of guy.”

And, of course, Washington set the very American precedent of stepping down after two terms, saying that in a republic, service is more important than power.

When his adversary King George III heard that Washington would surrender his commission, the king said counterintuitively that by giving up his power, Washington would become the greatest man in the world.