Trump: Who Cares About the Law, Anyway?
Why an American Federal District Judge can block a presidential directive to deport immigrants without due process, even if ignored by the White House.
William Thatcher Dowell·
Why an American Federal District Judge can block a presidential directive to deport immigrants without due process, even if ignored by the White House.
Should a Federal District Court judge be allowed to prevent the deportation of several hundred members of a notoriously murderous Venezuelan gang? Apparently, Donald Trump’s White House lawyers don’t think so.
Last week's deportation of several hundred 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 Washington’s Federal 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 advisor Stephen Miller, was already an accomplished fact.
White House spokesperson 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 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 relevance of an aircraft carrier filled with terrorists, but that’s the kind of logic coming out of the White House these days. (See William Dowell article on government destruction)
Trump: Ignoring the law
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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, “Oopsie! … Too late.” White House director of communications, Stephen 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 Judge Boasberg’s impeachment. That led U.S. Supreme Court Chief Justice John Roberts to publicly remind Trump that impeachment is not the way to handle judicial disagreements. The proper course of action is to appeal the decision. Roberts rarely says anything in public, and the reprimand signaled a warning that the White House was going too far.
On closer examination, the supposed crime attributed to the hapless deportees was to have allegedly belonged 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, Tennessee; 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 bundled onto a plane before any legitimate judicial authority could see or talk to them. We only have the word of the police who grabbed them off the street.
While that kind of behavior might be perfectly OK in a Russian oligarchy, Communist 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 it is legitimate or not. The Founding Fathers had enough nasty experiences with kangaroo courts cooked up by their colonial masters prior to 1776 to know what they were talking about.
On closer examination, a number of aspects of this particular snatch and deport operation began to look 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 Philadelphia would be in prison. It’s also less than clear whether simply being 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.
In fact, no attempt was made to determine specifically what crime any of the deportees had actually committed. That error, suspecting but not knowing what makes a person guilty, is why we have Habeas Corpus.
Deeper and more sinister questions are: why was the deportation operation carried out in secret, and what was it really intended to accomplish?
Trump and his minions had to know that any judge would almost certainly order an illegal deportation to 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 looked like 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 actually guilty or not. If you can bend the law a bit to deport a bunch of apparent criminals, why can’t you deport other people whom you classify as equally undesirable? The public relations message is even better: we finally have a president who is a man of action and doesn’t let himself be hamstrung by petty legal considerations that no one understands anyway.
Dismissing the law in a case like this may seem natural, but 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. (See Edward Girardet article from Weimar to Trump)
“First, they came for the socialists, and I did not speak out—because I was not a socialist,” said Niemöller. “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 surprisingly quick.
Beyond that, Karoline 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 determining whether the action is within the law. It is not the judge’s authority against the president. It is the authority of the law which defines the limits of the president’s power.
The reason the Founding Fathers insisted on that provision is clear. A president who ignores or violates the limitations set by law ceases to preside as president and starts down the slippery path toward becoming a tyrant.
The question that Judge Boasberg was forced to consider with 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 presents 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 is 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 other people. The law is essentially a social contract that lays out the rules for 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.
In most democracies, the law is intended to reflect the will of the majority, but the law also protects each individual against the occasional biases, whims, and prejudices of the majority.
What the law really accomplishes is to establish consistency in the social contract that defines the rules that enable all of us to live together. If that contract is broken or lacks credibility, anarchy ensues. For the law to work, it must apply equally to everyone, regardless of social status or influence. That is why the image of Justice is usually portrayed with a blindfold and a sword.
Anyone who works in government is likely to feel hemmed in by the number of laws limiting what he or she can actually do. Despite the obvious frustrations, interpreting the law remains 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 is tempted to resort to tyranny.
Some situations may seem to justify an exception to the law. The usual example cited is if a terrorist suspect is believed to have knowledge of a future bombing and interrogators believe that torture, or “enhanced interrogation,” is justified even though it is technically illegal. That notion was amply illustrated in the television series, 24, which premiered just after the 9/11 attack against the World Trade Center in New York and ran for nine seasons. The series hero, Jack Bauer, often operated outside the law. In fictionalized television, it worked. In real life, it often doesn’t.
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 Aldo Moro. General Della Chiesa, head of the Italian security services, replied: “Italy can afford to lose Aldo Moro; it cannot afford to engage in torture.”
Several 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 Della Chiesa’s famous words. If Argentina had only listened to General Dela Chiesa, the report concluded, a period of unmitigated horror might never have taken place, and 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.
The alternative to the rule of law is not passive resistance. In the end, when there is no other alternative, it quickly turns to violence, angry riots, terrorism, and eventually assassination.
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.
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 pause for a moment to take into consideration the rights of a few hundred Venezuelans who may or may not belong to a criminal gang.
Foreign correspondent and author William Dowell is Global Geneva's America’s editor based in Philadelphia. Over the past decades, he has covered much of the globe for TIME, ABC News and other news organizations.