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For most of two centuries, when federal courts ruled, presidents complied — often unhappily, sometimes angrily, but always with respect for the Constitution and the rule of law.
This week, a constitutional crisis loomed. The Trump administration used one of the most notorious laws on the books to deport 137 people on unconstitutional grounds. And it has chosen this issue to stage a showy defiance of the authority of the courts.
The Alien and Sedition Acts of 1798 are among the most reviled laws in our national history. They criminalized dissent, abused civil liberties, and violated the Constitution. Thomas Jefferson decried the statutes as coming from a “reign of witches.” One of these laws is still on the books, the Alien Enemies Act.
It has been used only three times: during the War of 1812, during World War I, and infamously, to imprison tens of thousands of noncitizens of Japanese, German, and Italian descent in internment camps during World War II.
Now this wartime law has been invoked in peacetime to deport Venezuelan immigrants to prison in El Salvador. The Trump administration alleges, without real evidence or independent review, that these men are members of the dangerous drug trafficking gang Tren de Aragua. That gang deserves strong punishment, and criminal and immigration laws give the government ample power to detain, arrest, and deport its members.
By contrast, the Alien Enemies Act offers no due process, with no need to prove charges in a court of law. Just the say-so of an all-powerful government is enough. Allowing a president to detain and deport people without a fair hearing based solely on where they were born is too much power for one person.
The law can only be used when there is “a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion.” We are not at war with Venezuela. And immigration is not an “invasion.” Courts will likely rule against the administration. This is where the constitutional clash comes in.
On Saturday evening, in a lawsuit brought by the American Civil Liberties Union and Democracy Forward, U.S. District Judge James Boasberg ordered a stop to the deportations. He even ordered the government to turn around any planes carrying immigrants being removed under the law. Numerous press reports documented how Trump administration officials decided to ignore the judge’s order. Some White House sources gleefully boasted about their impudence. Others piously insisted that no court order had been violated. The flights appear to have left the country while the hearing was still underway.
El Salvador’s president snarked, “Oopsie . . . too late.”
Here, two crises combine: a power grab that lets the government detain and deport at will with no due process and, if courts say no, the growing chance that the president will simply disregard a ruling he doesn’t like. It’s savvy, if cynical. We rightly revile drug gangs, so what better way to justify ignoring the law and the courts?
Yesterday afternoon, Judge Boasberg described the government’s position as, “We don’t care, we’ll do what we want.”
Tom Homan, the White House’s chief border official, was heedless. “We’re not stopping,” he said yesterday on Fox & Friends. “I don’t care what the judges think — I don’t care what the left thinks. We’re coming.”
But at the same time, other officials, such as White House Press Secretary Karoline Leavitt, insisted that the White House does follow court orders, just as it should. The lawyers representing the administration in court have said the same. Indeed, Donald Trump followed court rulings in his first term, even while fulminating against judges and the courts.
This all brings to mind the classic definition of hypocrisy: the tribute that vice pays to virtue.
If the courts rule against this power grab and the administration simply ignores them, judges have some tools to force compliance. Congress could also play an important role. But a willful president must ultimately decide whether to follow the law. Then the most powerful force swaying him will be public outrage. Our Constitution is built on checks and balances. We must all insist that presidents cannot simply defy court orders they don’t like. Anything less means the end of the Constitution and the degradation of democracy.
