Our nation’s rule of law is the foundation of constitutional order. The balance of power between the executive, legislative and judicial branches of government is the glue that holds democracy together. When one branch oversteps its lawful boundaries, the other can step in to restore the proper balance.
Perhaps the best-known example of a constitutional crisis averted was when President Richard Nixon complied with a unanimous Supreme Court order to hand over incriminating White House tapes to a special prosecutor during the Watergate investigation. Revelations from the recordings resulted in Nixon’s resignation and a peaceful transfer of power to a new chief executive.
But to those familiar with the fraught history of race relations in the United States, it comes as little surprise that most instances of titanic clashes between the courts and executive authority have come over cases involving the rights of marginalized populations. President Eisenhower sent 101st Airborne Troops to Little Rock, Arkansas, in 1957 after the governor refused to integrate schools in compliance with the landmark Brown vs. Board of Education case. In the fight against slavery, President Abraham Lincoln suspended the rights of defendants to be presented to the courts and defied a court order to produce a U.S. citizen accused of treason. President John F. Kennedy sent U.S. Marshals to both Alabama and Mississippi to force intransigent local authorities to comply with integration court orders.
Such clashes are relatively rare in judicial history, but under President Donald J. Trump, testing the limits of constitutional authority has become an Oval Office parlor game. It’s almost like Trump and Elon Musk — his disrupter in chief — invite various cabinet secretaries to the White House to toss darts at a target marked with numerous categories of executive overreach, from “firings” to “deportations” to “contract cancellations,” as a way of choosing the outrage of the day to pursue.
Until this week, the administration has responded more or less reasonably, albeit reluctantly, to multiple injunctions handed down by federal judges to slow down or pause their actions until proper judicial oversight is completed. That hasn’t stopped Trump and his allies from criticizing judges. After all, it’s their constitutionally protected right of free speech to do so — a right, by the way, they seem dead set on denying to others.
But the showdown in a Washington, D.C., courtroom this past week over the deportation of over 200 alleged South and Central American violent gang members to El Salvador threatens to become a full-blown constitutional crisis.
The core of the stand-off is whether the administration willfully ignored a court order to halt the deportations and whether it deliberately misled the court as to its ability to comply with the judge’s instructions.
U.S. District Court Judge James Boasberg clashed with a Justice Department lawyer in a hearing on Monday, with the attorney for the administration repeatedly refusing to answer the judge’s detailed questions about when the government believes his order to stop the flights took effect. The government has acknowledged that it was aware of the order after two planes had already taken off but failed to return the aircraft to U.S. soil because that directive was not included in the written order issued after the hearing.
The administration over the weekend invoked the 1798 Alien Enemies Act, which allows non-citizens to be deported in wartime, as justification for sending alleged members of the Venezuelan “Tren de Aragua’ gang along with MS-13 members to a prison in El Salvador.
At Monday’s hearing, the government lawyer sought to remove Boasberg from the case. And Trump’s border czar, the bombastic Thomas D. Homan, suggested in an interview that the White House would defy the courts. “We’re not stopping,” said Homan during an appearance on Fox News. “I don’t care what the judges think — I don’t care what the left thinks. We’re coming.”
The brinksmanship may be resolved without the Trump administration openly defying the courts. But if the White House in effect tells Judge Boasberg to take a flying leap off the Trump Tower, our nation has crossed into perilous lands, with the shadow of authoritarianism. Supporters of the president have obviously calculated that the vast public is not going to shed tears over the ouster of criminals from our streets, leaving aside for the moment whether those deported are actually felonious gangsters. Similar calculations have been made about other cases, including the detention and/or deportations of pro-Palestinian protesters.
What ties so many of these cases together is the lack of proper judicial review of the charges before actions harmful to the accused have been made. In effect, we risk standing by while homeland security lynchings take place, re-opening painful memories for those of us whose families fled the Land of Cotton and Extrajudicial Death.
The fact that President Trump has cozied up to dictatorial figures like Russian President Vladimir Putin and Hungarian Prime Minister Viktor Orban raises further worries about an administration dead set on eroding democratic norms, suppressing dissent, limiting free speech, acting by diktat, and marginalizing the courts.
The deportation case in front of Judge Boasberg may turn out to be the red line we never wanted to see crossed, by this or any president. The tragedy is that regardless of how the case turns out, it has already succeeded in undermining belief in the rule of law and sending us further down the path of autocracy. And that may be the master plan that Trump — already emboldened by a Supreme Court ruling granting him presumptive immunity for official acts — has been pursuing all along.
Throwing up our hands and saying, “God save America” is not an adequate response to Trump. We must continue to organize and act to take back the Congress from the Trump enablers now in control of the House and the Senate. We must support the legal warriors leading the courtroom battles, and demand that our judges stand up for the rule of law. We must harness the power of boycotts to punish the corporations who are financing the Trump agenda and dismantleing our democracy. There’s too much at stake to sit by and watch our country unleashed from its democratic moorings to become a ship of state with a mad captain at the helm.
Ronald Mitchell
Editor and Publisher, Bay State Banner
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