On Saturday night, planes carrying more than two hundred suspected members of a Venezuelan gang, Tren de Aragua (TdA), left the United States for El Salvador. Their arrival was hailed by Nayib Bukele, El Salvador’s President.
Bukele, as the Washington Post reports, “shared video showing the prisoners arriving at the airport, surrounded by heavily armed, camouflage-clad men.” His video “showed that masked officers then forced the men to their knees, shaved their heads, and marched them in white shirts and shorts into a cell block.”
El Salvador’s president posted the following cryptic message on X: “Oopsie, too late.” The meaning of that message would have been indecipherable, but for the fact that it was accompanied by a photo of a New York Post headline: “Federal Judge Orders Deportation Flights Carrying Alleged Venezuelan Gangbangers To Return to U.S., Blocks Trump From Invoking Enemy Aliens Act.”
Bukele, who has branded himself the “World’s Coolest Dictator,” showed his delight in helping to flout an American judge‘s order by posting a laughing emoji with his flippant message. Secretary of State Marco Rubio lavished praise on the dictator and replied, “Thank you for your assistance and friendship, President Bukele.”
But Americans committed to the rule of law and the survival of constitutional democracy should feel neither delight nor gratitude for either the Trump administration’s action or for a dictator who aided and abetted it in evading a court order. What the administration did with the Venezuelans shows the lengths to which it will go to transform our government of limited and separated powers into a government of limitless executive power concentrated in one man.
I suspect that what transpired this weekend will again make President Trump feel like a king and serve to vindicate his view that “He who saves his country violates no law.” That he accomplished his aims with stealth may only add to his pleasure.
I feel no sympathy for those who are allegedly involved in “the transnational gang known as Tren de Aragua.” But that does not excuse what the administration has done.
In my view, it crossed the Rubicon by the way it treated them and by its cavalier attitude toward our constitutional traditions and commitment to respecting courts as final arbiters of legal meaning.
Commentators have been telling us that we would enter uncharted territory and experience a constitutional crisis if Trump “‘blatantly’ [and] ‘flagrantly’ exceeded his constitutional authority.”
Last month, NPR quoted law professor Amanda Frost, who said that our constitutional system would fail if “the executive branch…[takes] the position that it can violate court orders or that it does not need to comply with court orders. So as long,” she said, “as we remain in a system in which the executive follows, or at least states that it has to follow what a court says, I have hope that the system will hold.”
This weekend that hope was put to a severe test.
It began on Friday. President Trump signed a proclamation claiming authority under the Alien Enemies Act of 1798 to send the Venezuelans out of the country.
As the Brennan Center for Justice explains, that act is “a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation. The law permits the president to target these immigrants without a hearing and based only on their country of birth or citizenship.”
The Brennan Center notes that “The president may invoke the Alien Enemies Act in times of ‘declared war’ or when a foreign government threatens or undertakes an ‘invasion’ or ‘predatory incursion’ against U.S. territory.” The act “has been used only three times before to bar citizens of hostile enemy governments from the United States, and only during a declared war.”
The president’s proclamation was clearly crafted with the act’s provisions in mind. “Tren de Aragua (TdA),” it stated, “is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.”
It went on to say that “Nicolas Maduro, who claims to act as Venezuela’s President…coordinates with and relies on TdA…to carry out [his] objective of using illegal narcotics as a weapon to ‘flood’ the United States.” But the proclamation was kept under wraps, as the Washinton Post says, “until after advocates for immigrants sued Saturday, fearing he was already sweeping immigrants out of the country.”
On Saturday, U.S. District Judge James Boasberg, the chief judge in the District of Columbia, issued a temporary restraining order blocking the Trump administration’s plan. The judge wanted to preserve the status quo until he could determine whether the president had misused the Alien Enemies Act in the absence of war or a real invasion.
In the meantime, Boasberg instructed the administration to immediately return to the United States any flights that already had departed. And he left no doubt about his order.
“This is something,” the judge said, “that you need to make sure is complied with immediately.” But compliance was not on the administration’s agenda.
Attorney General Pam Bondi made that clear when she issued a statement after the judge’s decision calling him out for siding with “terrorists over the safety of Americans.” She said that in her view, his order “disregards well-established authority regarding President Trump’s power, and it puts the public and law enforcement at risk.”
And, on Sunday, Karoline Leavitt, the White House press secretary, said that “the judge’s order had ‘no lawful basis and was issued after the deportees ‘had already been removed from U.S. territory.’”
Of course, the AG and the administration are entitled to their opinion about the president’s authority and Judge Boasberg’s decision. But under our Constitution, they are not entitled to evade or defy a court order.
The Supreme Court made that abundantly clear in 1967. “An injunction,” the Court said, “duly issuing out of a court of general jurisdiction…must be obeyed by them however erroneous the action of the court may be….”
“It is for the court…to determine the question of the validity of the law, and until its decision is reversed…either by itself or by a higher court, its orders based on its decision are to be respected.”
Justice Potter Stewart, who wrote the majority opinion in that case, explained that “One may sympathize with the petitioners’ impatient commitment to their cause. But respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
Those words have special resonance today. “[N]o man,” Stewart observed, “can be judge in his own case, however exalted his station, however righteous his motives….”
The Trump administration’s dark-of-night deportation of Venezuelan immigrants is no exception to that rule. That action suggests that the president and his colleagues fully intend to act as judges in their own cases and to assume the mantle of lawmaker and judge, no matter what the Constitution says.
The crisis Prof. Frost hoped would never arrive has become an American reality.
