In a move that surprised no one paying attention, the Trump administration has finally asserted that it outranks the courts. Maybe forcing all the competent, principled lawyers at the DOJ to resign has drastically diminished this government’s understanding of our system of checks and balances.
Or maybe, the administration's timing is cunningly calculated. Trump has always had a flair for the dramatic. He no doubt understands that the public will likely have little sympathy for non-citizen, non-white “terrorists,” “rapists,” and “alien enemies” being deported. Sympathies will be muted for people accused of such heinous crimes, even if they were denied any hearing at all. The serious allegations may make many glad that the deportees were sent to El Salvadorian concentration camps to be held down by masked guards as their heads are shaved on camera and posted on social media. This kind of advertising campaign and attention would often cost much more than the $6 million Trump spent staging it.
The least popular among us are useful pawns for pushing the boundaries of unchecked power. If the president is allowed to strip due process from the most despised, then that process becomes much less of a right, and more of a privilege earned by your good behavior, as evaluated by the president. Americans cannot forget that we have only those rights actually guaranteed to the lowest common denominator.
I cannot tell you that the people who were deported were good people. Nor can I say that they were terrorists. In fact, I cannot even tell you whether they were U.S. citizens. No one can — they were rounded-up and sent to extraterritorial carceral camps without any judicial oversight, solely on presidential whim.
The founders of our nation, fearful of a king in all but name, wisely provided Constitutional limits on presidential power. This system of checks and balances structures our government. Just as Congress can impeach and remove a president, the courts can order the government to delay certain actions while hearing arguments over whether those actions violate the Constitution. But these checks fail if the president refuses to recognize their authority.
I have no doubt that Trump believes those targeted in the raid deserve what they got — and worse. He certainly knows more about the details of those operations than you, I, Congress, or the courts. Perhaps you’re even inclined to believe him. Many Americans, with good-faith concerns about illegal immigration or cartel activity within our borders, might see this as a necessary step in bringing about Trump’s campaign promises. But those Americans should reflect with caution on this impulse.
While considerations of foreign affairs, national security, and carrying out electoral promises are solid reasons for judges to give broad deference to presidential actions, they cannot, and do not, render judges powerless to “exercise their own time-honored and constitutionally mandated roles of reviewing and resolving” claims of extralegal detention. There’s a world of difference between zealously arguing your position to the courts, and ignoring their orders — verbal or otherwise — because you disagree. One is how a president operates in a democracy. The other, a dictatorship. Rule of law, once a bedrock, bipartisan principle of our republic, collapses under a president who believes himself, or his policy goals, above it.
Once Trump unmoors himself from the check of the judicial branch, which he is now attempting to do, what could stop him? His newest stunt, ignoring clear judicial orders from a co-equal branch, is no different, constitutionally, from ignoring an impeachment by the House, and conviction by the Senate. It seems needless to explain, with the history of the world so readily available, that the unchecked powers Trump claims to possess will not stop with the summary deportation of alleged terrorist-rapist-alien-criminals. If we continue down this well-trod path to absolute power, the law will no longer constrain him, unless “the law” means simply whatever Donald Trump, signing orders with Sharpie and conviction, says it means.
And no, citizens are not safe either. Of the approximately 120,000 Japanese Americans forced into concentration camps during WWII, 80,000 were American citizens. Obviously the language of the Alien Enemies Act does not authorize deportation of U.S. citizens at all, let alone without trial, but laws tend to stop mattering once judges start being ignored. Imagine, for the sake of argument, that Trump declares you an enemy alien terrorist. You’d be hauled out of your home, without a warrant, without a hearing, without a jury, without a lawyer, thrown on a military transport plane, and sent out of the country to have your head shaved. It would do you no good even if you weren’t a terrorist, even if you were an American citizen. If the court can’t hear your defense, no one can.
The Trump administration’s position is now clear: there is no judge in the country that has the power to prevent, delay, or even question your removal. National security, though one of the most vital of executive interests, cannot be a magic phrase that prevents all judicial oversight. This was affirmed even at the height of the War on Terror, in Hamdi v. Rumsfeld (2004), where the Supreme Court said that “[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties… which makes the defense of the Nation worthwhile.”
Trump can wave the Constitution around, use legal terms of art like “non-justiciability,” and sign all the executive orders he wants, but a president who defies a co-equal branch of government is not upholding the law. He’s functioning off of the raw power of force, and force alone, limited only by his unchecked conviction that he is doing what is necessary to save America.
If this new phase in the Trumpian takeover doesn’t concern you, then you have much more faith than the writers of our Constitution in the ability of the human psyche to wield unchecked power.
This is not common-sense immigration policy. This is Trump’s Rubicon.
Liam Harney is a second-year student at Cornell Law School. He spent last summer working at the Louisiana Capital Assistance Center in New Orleans and will be spending next summer interning at the Legal Aid Society’s Criminal Appeals Division in New York City. He can be reached at ldh55@cornell.edu.
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