Who are they coming for next?
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Should a Federal District Court judge be allowed to prevent or even delay the deportation of several hundred members of a notoriously murderous Venezuelan gang? Apparently not, according to Donald Trump’s White House lawyers.
Last Saturday’s deportation of the alleged gang members to El Salvador, where they will be incarcerated for at least a year at a cost to US taxpayers of $6 million, looked like a victory for Trump’s don’t-sweat-the-details approach to law and order.
Sure, the deportation ran into opposition from District Court Judge James E. Boasberg, who immediately issued a verbal and then a written restraining order to have the planes carrying the deportees turn around and bring the purported gang members back to the US. But by then, the operation — apparently the idea of Trump’s hard-right adviser Stephen Miller — was already an accomplished fact.
White House press secretary Karoline Leavitt dismissed the judge’s injunction as not worth worrying about. “A single judge in a single city cannot direct the movements of an aircraft carrier [sic] full of foreign alien terrorists who were physically expelled from US soil,” she told reporters at a White House news conference. She neglected to explain the clearly mistaken reference to an “aircraft carrier” filled with terrorists, but that’s the kind of absurdly slipshod communication coming out of the White House these days.
El Salvador’s tough-talking president, Nayib Bukele, gleefully chimed in, using Elon Musk’s platform X to dismiss the judge’s restraining order with an “Oopsie! … Too late.” White House Director of Communications Steven Cheung immediately picked up Bukele’s remark and shared it with his followers.
Trump’s border czar, Tom Homan, went even further. “We’re not stopping,” he told Fox News. “I don’t care what the judges think. I don’t care what the left thinks. We’re coming.”
Trump supporters quickly called for Boasberg’s impeachment. That led Supreme Court Chief Justice John Roberts to publicly remind Trump that impeachment is not the way to handle disagreements about a particular decision of a sitting judge. The proper course of action is to appeal the decision to a higher court. Roberts rarely says anything in public beyond the words in Supreme Court rulings he either writes or signs onto. So his reprimand to Trump signaled a warning from a conservative justice that the White House was going too far.
An Undue Process
The supposed crime attributed to the hapless deportees was belonging to Tren de Aragua, a criminal gang incubated a little more than two decades ago in a notorious Venezuelan prison. Affiliation with the gang, which is more a loose association of like-minded members than an organized cartel, has been spreading across South and Central America. In the US, the gang has been accused of sex trafficking in Nashville, TN; ATM theft in New York; a contract killing in Miami; and low-level arms dealing in Denver.
We can’t really know the relationship of the deportees to the gang because they were grabbed off the street and hustled onto a plane before any legitimate judicial authority could see or talk to them. We have only the word of the police who apprehended them. While that kind of behavior might be perfectly okay in Russia, China, or North Korea, it is not legally allowed in the United States, where the Constitution guarantees habeas corpus — the right of anyone arrested to present his case to a judge to determine whether his detention is legitimate or not.
The Founding Fathers had enough nasty experiences with kangaroo courts and military detentions cooked up by their colonial masters prior to 1776 to rule out such peremptory behavior in the new government they created.
On closer examination, a number of aspects of this particular snatch and deport operation appear highly questionable. To begin with, affiliation with Tren de Aragua appears to have been determined according to the tattoos that the deportees were wearing. Having a tattoo is hardly a crime. If it were, half of my hometown of Philadelphia would be in prison. It’s also less than clear whether simply being — or having once been — a member of a gang or suspect group is a crime. It’s impossible to know because the deportations were carried out specifically to avoid anything resembling due process.
The question that Boasberg was forced to consider, in the face of the sudden deportation of unknown Venezuelans to a prison in El Salvador, was whether a few hundred people who might or might not actually belong to a criminal gang presented a greater threat than an administration that considers itself no longer restrained by the law.
In fact, no attempt was made to determine specifically what crime any of the deportees had actually committed. That potentially erroneous and manifestly dangerous rush to judgment — suspecting but not knowing what makes a person guilty — is why we have habeas corpus.
Even deeper and more sinister questions are: Why was the deportation operation carried out in secret, and what was it really intended to accomplish?
Beta Testing the Previously Unthinkable
Trump and his minions had to know that any judge would almost certainly order that an illegal deportation be stopped. The real motive behind the operation appears to have been to push the limits of presidential authority in order to create a precedent for future deportations. For that purpose, a suspect South American gang allegedly engaged in despicable acts presented a perfect target. Who is going to object to the deportation of a nasty bunch of thugs allegedly engaged in sex trafficking?
If the deed is done in secrecy and quickly enough, no one will ever know whether the deportees were guilty or not. If you can bend the law a bit to deport a bunch of apparent criminals, why not bend it some more to deport other people whose behavior or views you find undesirable?
The public relations message is even clearer: We finally have a president who is a man of action and doesn’t let himself be hamstrung by petty legal considerations with foreign-sounding names that no one understands anyway.
When confronted by such executive overreach, it’s worth remembering an observation by the German Lutheran pastor Martin Niemöller, who originally sympathized with some aspects of the rise of National Socialism in 1930s Germany, but was ultimately horrified by Hitler. Said Niemöller:
First, they came for the socialists, and I did not speak out — because I was not a socialist. Then they came for the trade unionists, and I did not speak out — because I was not a trade unionist. Then they came for the Jews, and I did not speak out — because I was not a Jew. Then they came for me — and there was no one left to speak for me.
The transition from an unrestrained leader to a would-be tyrant can be shockingly quick.
Trump’s Slippery Slope to Tyranny
Beyond that, Leavitt’s awkward suggestion that a single judge cannot override the authority of a president misses the point. In issuing a restraining order, the judge is not making or directing policy. He is pausing an action pending his determination whether the action is within the law.
It is not the judge’s authority against the president’s. It is the authority of the law that defines the limits of the president’s power. The reason the Constitution bestows that authority on the federal judiciary is clear. A president who ignores or violates the limitations set by law ceases to preside as president and starts down the slippery slope to becoming a tyrant.
The question that Boasberg was forced to consider, in the face of the sudden deportation of unknown Venezuelans to a prison in El Salvador, was whether a few hundred people who might or might not actually belong to a criminal gang presented a greater threat than an administration that considers itself no longer restrained by the law.
At stake is the rule of law itself. To understand why that is important, it’s important to understand exactly what it is that the law represents.
Every individual has his or her own aspirations and needs that are likely to conflict sooner or later with those of other people. The law is essentially a social contract that lays out the rules that determine which kinds of behavior are acceptable to society as a whole and which kinds are not. It is the ultimate arbiter of disputes between citizens.
Why the Separation of Powers?
In most democracies, the law is intended to reflect the will of the majority. But the law also protects an individual against the biases, whims, and prejudices of the majority. What the law really accomplishes is to promote consistency in the social contract that defines the rules enabling all of us to live together.
If that contract is broken, or loses credibility, anarchy or some form of tyranny ensues. For the law to work, it must apply equally to everyone residing in a jurisdiction, regardless of social status or influence or, in most cases, citizenship status.
Anyone who works in government is likely to feel hemmed in by the number of laws limiting what he or she can actually do. By design and despite the obvious frustrations, interpreting the law is the duty of the courts. Changing the law is the duty of Congress and the state legislatures — not the executive branch. A ruler not bound by the law sooner or later resorts to tyranny.
Some situations may seem to justify an exception to the law — genuine emergencies to which ordinary processes cannot respond effectively. A frequently cited example is a terrorist suspect believed to have knowledge of a future bombing, where interrogators come to believe that torture, or “enhanced interrogation,” is justified — even though it is technically illegal.
In 1978, Italy’s longest-serving prime minister, Aldo Moro, was kidnapped by an anarchist terrorist group calling itself the Red Brigades. A suspected member of the group was arrested, and a police officer suggested torturing him to locate Moro. The head of the Italian security services, Gen. Carlo Alberto dalla Chiesa, replied: “Italy can afford to lose Aldo Moro; it cannot afford to engage in torture.”
Years later, an investigating commission published a report on Argentina’s “Dirty War,” carried out after a military coup in the late 1970s and early 1980s. The prologue to the report cites dalla Chiesa’s famous words. If Argentina had listened to those words, the report concluded, the “disappeared” — some 22,000 to 30,000 Argentine men, women, and children who were arrested, tortured, and murdered by the military — might still be alive.
When the Rule of Law Breaks Down
The consequence of the breakdown of the rule of law is not passive resistance. In the end, when there is no other alternative, the resistance becomes violent — be it angry riots, terrorism, or assassination.
Although many of the 18,000 state and local police departments in the US are far from perfect, the reduction of violence throughout the US in just a single century has been enormous. We owe that to the rule of law.
Throughout much of the 1800s, large swaths of North America were essentially lawless. Americans often settled disputes by a duel, gunfight, or outright murder.
In his 1990 book Power Shift, Alvin Toffler describes the transition from settling disputes by force to settling them in the courts. As Toffler saw it, the settlement of disputes gradually moved from the exercise of force by individuals to a more peaceful and orderly resolution in the courts, backed by the police and other law-enforcement agencies.
Although many of the 18,000 state and local police departments in the US are far from perfect, the reduction of violence throughout the US in just a single century has been enormous. We owe that to the rule of law.
It is not something that we want to discard lightly, even if the law ultimately asks us to take into consideration the rights of a few hundred Venezuelans living among us who may or may not belong to a criminal gang.
