The Constitutional Crisis Has Begun

Written By Leeja Miller

Sources:

Transcript:

The Trump administration has increased the speed at which it is denying due process rights to immigrants and deporting them faster than judges can move to stop them. Despite court orders requiring them to pause their deportations, shady dealings, rushed plane rides, and DOJ lawyers dragging their feet has led to defiance of judicial orders, which the Trump administration claims are illegitimate and mocks with tongue in cheek social media posts. Tom Homan has declared that these deportations should be celebrated, and many on the right are cheering them on as the rule of law becomes nothing more than an illegitimate suggestion and we fall further into a burgeoning constitutional crisis. Let’s get into it.

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Hey so remember how a few weeks ago I said that when Trump starts defying judicial orders is when it’s my cue to fucking flee cuz this ship is going down? Okay yeah we’ve reached that moment, frankly faster than I anticipated but I guess we should never underestimate a dictator with ambitious advisors. And while there are SO many other fires burning that I could be focusing on today, especially given that I just talked about immigrant abuses last week when we discussed Mahmoud Khalil, yeah we’re talking about immigrants again today because Trump’s latest defiance of court orders, yes plural it’s happened multiple times already within the last few days, indicates another dramatic escalation, and I know it’s getting to sound so repetitive and like I’m being hyperbolic but I swear each “dramatic escalation” I mention is truly unprecedented and worthy of intense scrutiny and concern, this marks a dramatic escalation not only in Trump’s abuses of immigrants and widespread due process violations, but also a dramatic escalation in Trump’s dismantling of our democracy by eroding every check or balance in the book. The executive branch is firmly under his control. With each passing day Congress makes it clearer and clearer they have no plan to mount a serious or strategic opposition. It is only the judicial branch, through lawyers tirelessly working to file lawsuit after lawsuit with each new illegal act, and judges courageously standing up for the rule of law in the face of a tyrant, it is only them that stand between Trump and a full blown constitutional crisis–a collapse of the well-worn checks and balances that have allowed this country to continue functioning even through crises for 250 years. Which is why I said, weeks ago, when those levees fail, not through judges finding in favor of Trump but through Trump acting DESPITE what judges say, in defiance of them, it’s time to caulk the wagon and float, batten down the hatches, or any other old timey phrase of your choosing because we’re in for it. We’re cooked. Five alarm fire isn’t enough we’re at 18 alarms, people, 20 alarms. Okay you get the picture. But let’s not run around screaming like headless chickens let’s fucking lock in and focus on what’s happening because while everything feels bad and it can be easy to feel really powerless, there is power in knowledge, and scrutinizing the government and its illegal activities is a very important activity for the populace to engage in. So let’s not look away. Here’s the latest:

Twice in the last few days, the Trump administration has defied explicit court orders with regards to deporting immigrants, and then turned around and claimed they didn’t defy anything and the court didn’t have the authority in the first place. 

First, Dr. Rasha Alawieh, a doctor and professor specializing in kidney transplants at Brown University’s medical school, traveled to her home country of Lebanon last month for a visit with family. After arriving back in the United States on Thursday, she was detained at the Boston Logan International airport for 36 hours without being given a clear reason for her confinement and without being allowed to speak with a lawyer. Dr. Alawieh holds a valid H-1B visa for highly skilled foreign citizens, which she received via a sponsorship from Brown University. Her specialty is in kidney transplants, which is an area of practice that relies heavily on foreign doctors coming to the United States to practice because there is a shortage of doctors in that specialty here. She was actively treating patients awaiting or recovering from kidney transplants. So, once again, similar to Mahmoud Khalil, we have a highly educated, Ivy League-affiliated immigrant here in the US legally, being detained without being told why by ICE officials. On Friday, after Dr. Alawieh’s cousin filed a complaint to prevent her deportation, a federal judge ordered the government to provide the court with 48 hours’ notice before deporting the doctor. Despite the order, that same night she was put on a plane to Paris to begin the first leg of her forced journey back to Lebanon. On Sunday morning, the judge on the case issued another order, saying there was reason to believe ICE had wilfully disobeyed his order by deporting the doctor without giving proper notice to the court. According to the New York Times “he said he had followed “common practice in this district as it has been for years,” and ordered the federal agency to respond to what he called ‘serious allegations.’” A hearing was scheduled for today, Monday, at 10am, but was abruptly cancelled moments before it was set to begin.

According to new filings from attorneys on both sides, the doctor’s cousin filed her petition at 6:43pm on Friday. Her lawyer was at the airport and had notified a customs and border patrol agent of the complaint. Half an hour later at 7:18pm, Judge Sorokin issued his order requiring 48 hours notice before deporting the doctor. The lawyer representing Alawieh’s cousin was at the customs and border patrol office at the airport when the order came down, and despite yelling repeatedly throughout the office, calling the office number 8 times, and pressing the emergency button at the state police kiosk, she was unable to locate any CBP official to provide them notice of the order. According to a sworn declaration from CBP official John Wallace, CPB walked Dr. Alawieh to her gate at 7:20pm, and her flight to Paris departed at 7:43 pm, half an hour after the judge issued his order but allegedly BEFORE CBP had received official notice. Therefore, government lawyers argue, CPB never received an official order from the judge prior to her deportation. Further, CPB officials stated that she was deported because they found images and video sympathetic to Hezbollah in the deleted folder on her phone, and under questioning she told officers that she had attended the funeral of the leader of Hezbollah. The DOJ stated that CBP determined “that her true intentions in the United States could not be determined.” Further complicating things, there seems to be a change-up happening in Dr. Alawieh’s legal counsel, with one lawyer requesting to postpone the hearing so her new counsel could adequately prepare, and another lawyer withdrawing from her case quote “as a result of further diligence” without elaborating further. 

I think this case is a good example of the quick moving and very sensitive nature of deportation proceedings–when one agency like ICE is tasked with moving quickly and deporting people as fast as possible, it is really easy to get sloppy or violate due process rights because courts cannot keep up with the pace. It is also very possible that after Alawieh’s lawyer alerted CPB of the claim filed in court, they moved quickly to deport her before the judge could issue an order, knowing it would come quickly but not so quickly that they couldn’t find a spot for her on any plane leaving the US in the general direction of Lebanon. 

And, as I’ve been talking about in past episodes, once again terrorism and who we’ve deemed terrorist plays a major role. In the case of Mahmoud Khalil, his support for Palestine is equated to promoting terrorism and upholding Hamas. In Dr. Alawieh’s case, attending a funeral, I assume the photos and videos on her phone were from the funeral but obviously I’ve not seen the evidence, is equated to sympathizing with a major terrorist organization to the point that revocation of her legally held visa is warranted. And to be clear this wasn’t an intimate gathering of close friends. This was a funeral for the LEADER of Hezbollah which tens of thousands of people attended in Lebanon. It was held in a literal stadium. 

And while the US, Israel, and most Western governments have dubbed Hezbollah a terrorist organization, sentiments on the ground in Lebanon are not so black and white as “terrorist” or “not a terrorist.” A recent survey showed that 93% of Shia Muslims in Lebanon express positive views of Hezbollah, compared to only 34% of Sunnis, and 29% of Christians. But within Lebanon, Hezbollah operates as a legal political party and, according to The Guardian, has become a political and social powerhouse. Which group is considered a “terrorist organization” is very different depending on who you ask. And so when someone attends a funeral for someone associated with the group in a country where support of the group is complicated, strongly sectarian, and not at all black and white, and then CBP uses that to determine that that person, who has done nothing but contribute to the medical community in the US for the last six years, is affiliated with the terrorist group and should have their visa revoked without notice and a hearing or any other constitutional protections against confinement without probable cause or any other number of protections that are guaranteed to citizens and non-citizens alike, you have a system RIPE for human rights abuses and for life altering snap judgments based on racism, xenophobia, and a limited understanding of geopolitics. But it’s very likely that her lawyers withdrew because they saw the CBP filing about her “pro Hezbollah” sentiments and decided her case wasn’t winnable or they didn’t want to besmirch their good name by being affiliated with defending a terrorist. 

Am I saying she’s innocent and there are no grounds to deport her? No, because I don’t know, because she was completely denied due process and therefore was never given the chance to plead her case, nor did the government have to provide concrete evidence before deporting her. And that’s problematic on so many levels. Like I’ve said in multiple past episodes: we give even the most heinous of criminals due process in this country. Ted Bundy was guaranteed his day in court. But where immigrants are concerned, especially if the “terrorist” label can be pinned on them, due process rights and all the rest of the constitution goes right out the window. That is evidenced in this case against Dr. Alawieh and it is also evidenced in the other main story I’m covering wherein hundreds of Venezuelan immigrants were deported, in violation of a court order, to a prison in El Salvador notorious for its human rights abuses.

On Sunday morning, 261 Venezuelan immigrants were flown from the United States to El Salvador and quickly transported to the new Terrorism Confinement Center, a mega-jail in rural central El Salvador. The maximum security facility is said to hold up to 40,000 people and has been accused by human rights groups of abusing inmates. Reports say that at least 261 people have died in El Salvador prisons in the last 2 and a half years. The cells in the terrorism confinement center hold 65 to 70 prisoners each, not everyone gets a bed, they are not allowed visitors, there are no rehabilitation programs, and they are never allowed outside. Many of the prisoners are being held despite never having received any due process, and the justice minister of El Salvador has said the people being held there would never be allowed to return to their communities. El Salvador offers a telling example of what happens when a leader abuses power. In 2022, President of El Salvador Nayib Bukele declared a state of emergency because of gang violence, he sent military into the streets where tens of thousands of people were arrested, over 25,000 in the first weeks of the crackdown. That state of emergency is still ongoing 3 years later. According to the New York Times, “The vast majority of the 85,000 Salvadorans apprehended under the 2022 state of emergency … have essentially disappeared into the prison system, where many have been held for years without trial and without their families even knowing if they are alive.” It seems that, to Trump, President Bukele’s system is aspirational.

Official video of the arrival of immigrants from the United States, posted by the president of El Salvador shows inmates shackled, forcibly bent over, their heads shaved, and then lined up on a prison floor, surrounded by heavily armed guards in balaclavas. These men have not been identified by either the US or El Salvador, nor has evidence been provided of their alleged gang membership. Their membership in gangs named in executive orders by the president as “terrorist” organizations is the reason given for why they have been taken, given zero due process, forcibly removed, and sent to a country they likely have never set foot in, to be held in a maximum security prison outside the oversight of US courts and lawmakers, with absolutely zero transparency as to the practices inside the building. This is Guantanamo 2.0, this time with a gleefully complicit country host, with President Bukele tweeting “Oopsie, too late” when news broke that these detainees had been flown to El Salvador despite a court order not to. President Bukele has claimed the detainees will be held for one year, which could be renewable, and that the price the US is paying will be low for us, the US, but high for El Salvador, allowing them to finance the mega prison.

This happened one day after Trump announced that he signed a proclamation invoking the Alien Enemies Act of 1798. He accused Venezuelan gangs of quote “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and engaging in “irregular warfare.” None of this is surprising if you’ve been following everything for the last, I don’t know, six months, but that doesn’t make it any less horrifying. Trump repeatedly promised on the campaign trail to invoke the Alien Enemies Act. On his first day in office he declared an emergency on the southern border and dubbed cartels as terrorist organizations. Trump and his ilk have been referring to immigration as an invasion at the southern border. This has all been calculated to lead to this moment. 

The Alien Enemies Act was passed in 1798. It gives the President the power to detain or deport natives or citizens of an enemy nation. The president is allowed to invoke the act either in times of declared war or when a foreign government threatens or enacts an “invasion” or "predatory incursion” onto US soil. Only Congress can declare war, and so clearly the part that applies to war doesn’t work, but that “invasion” language is being weaponized to say see the president thinks there’s an invasion, it is within his powers to declare it so and determine that invoking the Alien Enemies Act is warranted. In their view, the word “invasion” is not to be taken literally, that a proper invasion isn’t necessary when the president decides what’s happening is akin to an invasion. This, according to the Brennan Center, is a misreading of the law as written and understood by Congress, saying quote “the Alien Enemies Act is a wartime authority enacted and implemented under the war power. When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be “treated as prisoners of war” under the “rules of war under the law of nations.” In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks.” Instead, Trump and his supporters are using their declared “invasion” at the southern border to bypass immigration law and constitutional protections and speed up deportation of immigrants across the country.

The Alien Enemies Act has been invoked 3 times since 1798, all during times of declared war–the war of 1812, world war 1, and world war 2. The use of the power allowed for the internment of Japanese Americans, upheld by the Supreme Court in a case called Korematzu, roundly criticized as one of the worst, most unjust decisions in the Supreme Court’s history. Chances are they’ll be given an opportunity to make the same awful choice again.

So the Trump administration is relying on his declaration this weekend in which he invoked the Alien Enemies Act to deal with the “invasion” at the southern border. Numerous groups of course quickly sued to stop the act from taking effect and to challenge Trump’s authority to invoke it. On Saturday night, US District Judge James Boasberg in Washington DC ordered a temporary stay on the deportations planned pursuant to Trump’s proclamation. He wanted to hear further arguments before ruling on whether or not the law should stand. The ruling was issued allegedly AFTER the planes filled with over 200 deportees headed for El Salvador had taken off, though evidence of when the flights departed from the US has not yet been provided to the courts. When lawyers informed the judge that the planes had already left, the judge verbally told them to turn the flights around. The Trump administration did not comply, and all detainees arrived and remain in the El Salvador prison.

The technicality of whether the administration violated the judge’s order remains in question. The Trump administration, through press secretary Karoline Leavitt denies any wrongdoing, saying “the order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from US territory.” She also said “A single judge in a single city cannot direct the movements of an aircraft — full of foreign alien terrorists who were physically expelled from US soil” indicating a glaring and flagrant misunderstanding of the law and how the judicial system works in this country. Immigration experts and the ACLU which is involved in the ongoing lawsuit say that Trump’s invocation of the Alien Enemies Act is without precedent and unlawful and he should not have been deporting immigrants while this case was actively pending. They have demanded that the Trump administration provide further details of the timing of these flights. But even if it is true that the immigrants were not on US soil and were instead airborne at the time the judge’s order was issued, the fact remains that they were likely in US custody still while on those planes and there are ways to communicate with people who are in a plane far away, we all do it anytime we get that sweet sweet free wifi even all the way back in coach. And instead of acting with any deference to the judicial system or the rule of law, the Trump administration basically said “catch me if you can” and moved quickly to get these immigrants off US soil and outside the jurisdiction of US judges as fast as possible. Today, Monday, the White House posted a video on Twitter of men being chained up while the song Closing Time by Semisonic played in the background, with the caption “You don’t have to go home but you can’t stay here.” A gloating, tongue in cheek celebration of the forcible, illegal removal of immigrants while denying their constitutionally protected due process rights. Trump’s border czar Tom Homan made an appearance on Fox and Friends this morning and, when asked what happens next, he declared “another flight, another flight every day. We’re not stopping. I don’t care what the judges think.” Representative Brandon Gill of Texas has announced he’ll be drafting articles of impeachment against Judge Boasberg for issuing his order to turn the planes around. Because they know the same thing I have been screaming, that judges truly are the last bulwark against vast and unchecked human rights abuses under the Trump administration. Without their oversight, in Guantanamo or El Salvador or anywhere else, especially in countries like El Salvador where corruption runs rampant and human rights protections are scarce, these people, whether guilty or innocent, will have nothing protecting them from abuse, torture, and inhumane treatment. And Trump and his people know that and that’s why they’re doing this. Keeping immigrants on US soil prevents them from moving quickly and doing away with the unwanted element they are deadset on exterminating one way or another.

The Trump administration hasn’t even identified these men, let alone provided proof of their gang affiliation or any criminal activity in court or otherwise. Ted Bundy got to use our tax dollars to exercise his constitutional right to defend himself in court and question the witnesses against him, these guys, or Mahmoud Khalil, or Dr. Rasha Alawieh, do not. Instead, immigrants are being literally disappeared by the US government. Because of the lack of clarity on which people are on those flights and what they’re accused of, their own families have no idea where they are. According to the New York Times, one mother’s 24 year old son spoke to her on Saturday morning from a detention center in Loredo Texas and told her he was going to be deported with a group of other Venezuelans but didn’t know where. Soon after their conversation, her son’s name disappeared from the US immigration authorities database and she hasn’t heard from him since. She has no idea where he is. Despite the fact that the constitution protects due process rights for all people, not just citizens. But because they are brown or because they are Muslim, decades of Islamophobia and centuries of racism and harmful stereotyping means that it is far too easy to violate the rights of human beings, to dehumanize them to the point that society is willing to look the other way or, in the case of Trump supporters, cheer as they are held captive without due process and forcibly removed from their homes whether or not they are legally allowed to be here, whether or not they have done anything wrong, with no proof, no accountability, and no oversight. 

And in response to this blatant, despicable, illegal, unconstitutional power grab that will likely lead to the forced removal, disappearance, and abuse of hundreds of human beings, the Democrats *checks notes* issued a statement. 

And while it is probably cheaper to house immigrants in El Salvador than within the United States, those flights are costly, and the oversight from judges and meddling from pesky human rights groups will continue. Which is why Tom Homan said out loud the thing that most of the Trump Administration seems to agree on: “we’re not stopping. I don’t care what the judges think.” And that statement truly is a dire sign of the constitutional crisis we are facing. We are not “on the brink” of a constitutional crisis anymore, we are actively experiencing it. Because just like I talked about last week, much of our democracy and the institutions we have relied on as a nation for the last 250 years have a foundation that relies on shared understanding and respect for things like the rule of law, trust in institutions, the consent of the governed, and other fundamental democratic ideals that are more gentleman’s agreements than enforceable code. Deference to judicial orders rests on the same foundation, I’m afraid. Judges do have additional enforcement powers, there are sanctions if parties do not comply with court orders, up to and including imprisonment of those found of being in contempt of court. But a judge sitting in Washington DC issuing orders cannot forcibly physically stop an airplane. And the sheer scale and intensity of the deportation efforts, though slower than promised much to the chagrin of Trump, is so big that keeping up with every new abuse is nearly impossible, as evidenced by both the deportation of Dr. Alawieh and of the Venezuelans bound for El Salvador. The Trump administration can move faster, can obscure the facts, can exploit legal gray areas, can gum up the legal process, and can get away with due process and other constitutional violations so long as they can stay one step ahead of the judicial process, and given the very slow nature of our judiciary, it looks like they’re doing just that. 

The justice department has appealed Judge Boasberg’s ruling against the use of the Alien Enemies Act saying that Trump’s actions are quote “not subject to judicial review” because the president has inherent constitutional authority over national security and foreign policy, and that the federal courts lack jurisdiction over his exercise of a quote “war power.” Which like legally speaking is bonkers koo koo bananas. Courts have regularly reviewed and checked presidential power in times of peace and war. They are often more deferential than they probably should be when the president claims national security concerns, hence the infamous Korematzu decision allowing for the forced internment of Japanese Americans, but it is well within their jurisdiction to review presidential actions, especially when they are done by invoking a Congressionally written statute like the Alien Enemies Act. It is quite lit’rally the federal judiciary’s job to act as a check on Congress and the Executive branch. But these lawyers are operating under the fringe “unitary executive” legal theory that I’ve talked about numerous times before which posits, based on zero historical evidence, Constitutional language, or any other thing that could feasibly support the bonkers argument, that the framers of the constitution definitely meant for the powers of one single executive, the president, to be absolute and outside the checks and balances of Congress or the judiciary, and definitely didn’t literally explicitly call the three branches “co-equal” or anything that’s crazy what are you talking about.

But unfortunately this loony fringe legal theory has been given oxygen thanks to the conservative pipeline I’ve pointed out numerous times on this show: give money to colleges to fund “institutes” whose graduates then populate “think tanks” that are willing to publish the most fringe and unfounded legal theories into sophisticated sounding legal journals, thus giving them an air of legitimacy despite the fact that they are not backed up by law or fact or history or anything other than something made up by someone that likely benefits the monied interests of the people paying their bills. And so now we have some people who went to fancy sounding institutions and worked at official sounding think tanks who have infiltrated the ranks of the government and are now putting forth these fringe legal theories in official governmental filings that judges have to actually entertain and contend with now. And they present it all as though it is obvious and well-established law when it is anything but.

So when press secretary Karoline Leavitt or borden czar Tom Homan or Trump himself say that Trump and his administration are just acting within the clearly defined and constitutionally protected confines of Trump’s executive powers, do not buy it. It is based on faulty legal reasoning that was not given an ounce of respect by legitimate legal scholars or lawyers until very recently. It is a legal argument that if you had presented it 10 years ago in court you could be credibly accused of malpractice for filing frivolous arguments and at the very least would be the laughing stock of whatever courts you practice in. The MO of this administration is to make things up or blatantly defy the law and then act as if they were right all along. Do not buy it.

If you’d like to support my work, now’s a great time to join the Patreon because I launched the Why, America? Co-Learning Lab at the beginning of this year, a learning community having discussions and making connections, along with a monthly syllabus curated by me. All year we’ll be covering topics under the umbrella theme of “Eat the Rich: Building Solidarity in the New Gilded Age.” March’s topic is how billionaires bought the government. This is all hosted over on Patreon, which is linked down below. If you’re interested, please join us. Patreon dot com slash leeja miller.

Thank you to my multi-platinum patrons Marc, Thomas Orf, Sarah Shelby, Art, David, R_H, L’etranger (Lukus), Joshua Cole, Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you! 

And if you liked this episode, you’ll like the one from last week in which I discussed the Trump Elon Tesla march sales event on the White House lawn.



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