BRIEF: Is the constitutional crisis here?
Big thought, small step, deep breath — for March 17, 2025
BIG THOUGHT
Are we there yet?
For all of the transgressions of the Trump-Musk administration, many commentators have put off diagnosing the country with a full-blown case of constitutional crisis. There would have to be outright defiance of a court order, some suggest. And as many have argued that so far it’s been more of a constitutional stress test.
But has the United States now failed that test?
This past week, the Trump administration deported some 238 people alleged to be members of the Venezuelan gang Tren de Aragua, along with another two dozen El Salvadorans, also alleged to be gang members, basing their case on the 1798 Alien Enemies Act, last used during the Second World War to justify the imprisonment of Japanese-Americans in internment camps. In this case, the administration based its deportations on the Act because — at least in their reading — it would let them move quickly enough that the deportees wouldn’t have time to contest the accusation that they were gang members (no evidence was presented to support the accusation), or even a venue to do that in, since the whole process would take place outside of the immigration court system.
The plan was to send the deportees to Salvadoran strongman Nayib Bukele’s CECOT mega-prison, courtesy of a deal with the U.S. State Department to receive U.S. prisoners — deportees and citizens — for a fee. “The most unprecedented and extraordinary migratory agreement anywhere in the world,” Secretary of State Marco Rubio called it, and that’s something of an understatement for something that’s explicitly unconstitutional in every aspect.
But that may not be the worst part.
The ACLU filed suit against the government on Saturday, arguing that the Alien Enemies Act could only be invoked under a declaration of war, and U.S. District Judge James Boasberg agreed, issuing a stay and blocking the deportations, ordering any planes currently carrying the deportees to return to the U.S.
But the damage had been done. According to air traffic timelines, the flight departed during the hearing. And following Boasberg’s stay, the flights continued, the deportees were flown to El Salvador, deplaned, and were on their way to CECOT. The White House claimed both that the deportees had already been removed by the time the ruling was handed down and that the courts simply had no jurisdiction.
Bukele and Elon Musk responded with the sort of trolling you’d expect.
Now whatever you think about deporting alleged gangsters (and plenty of Americans find it difficult to read their moral compasses when faced with the spectre of crime), the government went and did it again, against a target who’s a lot harder to dismiss.
The administration also detained and then deported Dr. Rasha Alawieh, a Brown University professor and physician who had returned this past Thursday to the U.S. from her native Lebanon under a new and valid H1-B visa. Dr. Alawieh was detained as she reentered the country, denied access to an attorney, and then — even after a judge issued a court order forbidding her deportation — she was still deported, the government simply refusing to comply with the order. U.S. District Leo T. Sorokin has followed up his initial order with a second filing, ordering U.S. Customs officials to defend their actions in a hearing set for this morning. It’s still unclear on what grounds Dr. Alawieh was even detained in the first place; no reason was given to family and U.S. Customs and Border Protection has not responded to reporters’ requests for information.
The courts may be doing their best, but if the administration is prepared to simply defy them — then we’re in very different territory that demands a political response that so far has been inadequate, and a response from civil society that is still taking shape. The question is what kind of sanctions the federal courts can impose (i.e. could the courts hold the State Department, or the executive in contempt), and ultimately whether they can abandon their long-term willingness to simply defer to the White House on issues of supposed national security.
These are critical questions, all the more so as the administration steps up its deportation campaign, and leaking plans for a renewed travel ban, even as Senate Democratic leadership has signaled with its capitulation in the budget showdown its distaste for the kind of oppositional role their constituents demand.
We’ve talked in this newsletter about why accepting a check-your-papers society means accepting a very different America. The detention of Mahmoud Khalil and the revocation of fellow Columbia student Ranjani Srinivasan’s student visa — both without evidence of wrongdoing — were bad enough, but this weekend’s deportations expand on that lawlessness by simply rejecting the jurisdiction of the courts altogether.
Now, whatever happens in the courts following this round of deportations, some will be tempted to move the goalposts. When the administration dodges a Supreme Court order — that will be a real constitutional crisis. But It’s hard to see the administration’s rejection of the checks and balances inherent in the constitutional separation of powers as anything but a constitutional crisis. The time to take that threat seriously is right now.
SMALL STEP
Know your rights
If you’ve seen the video of Mahmoud Kahlil’s arrest, or read the account of Columbia student Ranjani Srinivasan’s flight to Canada, you may have found yourself wondering exactly what you could — and should — do if you, a family member or friend, or member of your community is stopped or detained by police or ICE. The ACLU has pulled together a handy immigrants’ rights resource page that explains the legal rights citizens and non-citizens have when approached by federal and local authorities in pretty much any conceivable situation, along with guidelines for how to act within and assert those rights.
Given the direction of federal deportation efforts right now and a new travel ban in the works, it’s a perfect time to familiarize yourself with the law governing immigration enforcement, detention, and deportation.
DEEP BREATH
The world is still a beautiful place
This past week, the World Photography Organization chose the shortlisted images in the 2025 Sony World Photography Awards. Feel like spending a few hours seeing the world from a host of new perspectives? You’ll want to visit the galleries to check out some of the best work done over the past year by professional, amateur, student, and youth photographers in portraiture, wildlife and nature, architecture, still life, and many other subcategories of the photographic arts. Don’t miss the galleries from previous years either — it’s a real treasure trove of imagery (and a fine alternative to doomscrolling).
A programming note: We’re going Live!
Join us today, Monday, March 17 at 12:30 p.m. Eastern, when we’ll have our weekly conversation with scholar of fascism Ruth Ben-Ghiat. And come back Thursday, March 20, at 1:00 p.m. Eastern (a half-hour later than usual), when we’ll be joined again by messaging guru Anat Shenker-Osorio. We hope to see you at both!
To join and watch, download the Substack app (click on the button below) and turn on notifications — you’ll get an alert that we’re live and you can watch from your iOS or Android mobile device. And if you haven’t already, subscribe to The Ink to access full videos of past conversations and to join the chat during our live events.
The judge handling this case will pursue this—he’s a well-respected former federal prosecutor and the Chief Judge of a bench that’s been very tough on Trump (see,e.g., Judge Beryl Howell) and watched in horror as Trump pardoned the 1/6 convicts they had sentenced, harshly. I think he will engage in illuminating fact finding because the facts are so horrendous as to compel it and Trump’s BS excuse (‘too late’) is so contemptuous.
I say without snark or ego, and more or less with a sense of deep sadness that "I told you (plural) so." It has always seemed to me a matter of simply adding up the obvious things we know about Trump&Co (Inc) that they, like any other heartless predatory abusers, would work with every tool available to hollow out as much of our resistance as possible, then pounce by assuming a stance above and beyond the law. And it ought not go without saying that they are acting with the full cooperation and assistance of a large swath of corporate America, which has historically been headed by men of dubious morality and obvious greed. Not to mention an insanely narrow self-focus. And now we find ourselves in a hellscape where, if we can't find the guts or the means to rid ourselves of these scofflaws, we must fall back into a true Resistance. Not the way I planned to spend what is likely to be my final decade, but so be it. Live Free or Die.