Photo: Migrants being led into prison in El Salvador. Credit — Press Secretary of the Salvadoran presidency
In a video produced by Salvadoran president Nayib Bukele and shared widely by figures in the U.S. right wing, migrants are dragged off a plane by heavily armed soldiers wearing masks. They’re forced to their knees and have their heads shaved while shackled at the hands and feet, then shoved into a massive holding cell.
The men in this video are mostly immigrants from Venezuela swept up in Trump’s mass deportation campaign. The brutality they endured is testament to the total cruelty of the administration, and also something more. The deportation flight they were sent to El Salvador on is part of a maneuver by Trump to seize near-dictatorial authority by proclaiming that his actions as president are not subject to review in a court of law.
Terrorists and “alien enemies”
On Saturday, Trump issued an order invoking the Alien Enemies Act of 1798 to speed up deportations of Venezuelans. This is a law that was meant to be used during wars, and was the legal basis for the mass imprisonment of people of Japanese descent during World War Two in the infamous “internment camps”.
The order falsely claimed that the so-called “Tren de Aragua” gang was a proxy of the Venezuelan government, and was conducting an invasion of the United States at the direction of president Nicolás Maduro. The men subjected to such extreme brutality in the video Bukele posted to Twitter were alleged to be members of this gang – something that Trump has provided no evidence for and is vigorously denied by deportees and their families. In Trump’s racist, anti-immigrant narrative, all Venezuelan migrants are treated as assumed members of Tren de Aragua.
Tren de Aragua may not even exist – the Venezuelan government says that they managed to dismantle the gang years ago. But that didn’t stop Trump from officially designating it a “foreign terrorist organization” on his first day in office.
Trump is basically saying that undocumented immigrants from Venezuela are soldiers of an invading terrorist army and should be treated as such. By invoking wartime authority, Trump was setting the stage for the next phase of his power grab.
Showdown in court
Trump made a deal with Bukele to imprison alleged “Tren de Aragua” members. Bukele is infamous for building a massive prison system that is notorious for extreme human rights abuses. Because of Bukele’s far-right government, El Salvador has the highest incarceration rate in the world.
The use of the Alien Enemies Act to carry out deportations was immediately challenged in court. James Boasberg, a federal judge in Washington, D.C., ruled on Saturday that the Trump administration must pause the deportations until a full legal review could be conducted.
But the flight was already in the air when the emergency ruling was made. The judge was not sure where the migrants were at the time of his ruling, but he made it clear that if need be the plane must turn around and return to the United States.
However, Trump just ignored the order. The flight landed in El Salvador, and the deported immigrants were thrown into prison. After posting the video, Bukele even mocked the U.S. judge by tweeting “Oopsie… Too late 😂”.
Boasberg held a hearing on Sunday seeking answers from the Trump administration about why they so wantonly violated his order. The Justice Department’s lawyer argued that the administration had complied because the written version of the judge’s order was not officially registered until about an hour after he had issued his order orally. The idea that an oral order is not binding but a written one is is far-fetched, but even that fact is in dispute. When the judge asked for the exact time that the flight landed in El Salvador, the government’s lawyer refused to answer because it was a matter of national security. In Trump’s fantasy (and his administration’s official legal rationale), mass deportations are part of a literal war and the judge is not entitled to know war secrets.
The White House vs. the court system
As outrageous as its assertions in court were, the public statements coming out of the administration revealed an even greater danger. The Trump administration’s press secretary Karoline Leavitt justified ignoring the judge’s order by saying that federal courts “have no jurisdiction over the President’s conduct of foreign affairs” because the constitution gives the president power over foreign policy.
Trump’s “border czar” Tom Homan was even more blunt. Reacting to the controversy, he told Fox News, “We are not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming.” He promised to send “another flight every day”.
The logical conclusion of this line of reasoning is that Trump is totally above the law. The constitution gives the president responsibility for the executive branch, which encompasses not only foreign policy but all government agencies responsible for everything from environmental regulation to taxes to the prison system and much more. It is hard to imagine any policy that would not arguably fall into one of these areas.
The whole idea behind having “check and balances” is that one part of the government can prevent another from seizing total control. The courts determine if the president (or any other official or institution) is acting within the law – a concept known as “judicial review”. The whole point of judicial review is that all official acts are subject to it. But if Trump can just ignore anything a judge says about an issue that falls under the purview of the executive branch, then that effectively means that no one has the legal authority to stop him from doing whatever he wants.
For daring to even question his authority, Trump publicly attacked Boasberg, calling him “a Radical Left Lunatic Judge” and “a troublemaker and agitator”. Trump wrote, “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
This prompted the Chief Justice of the Supreme Court, John Roberts, to issue an extremely rare public response. Roberts said, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Roberts is a right-winger who was appointed by George W. Bush and is highly committed to maintaining the appearance of being “above politics”. The fact that he has been drawn into this fight shows how massive the stakes are. This is a historic clash between the judiciary and the presidency, and the outcome will have profound implications for the structure of the system of government itself.
The people’s struggle is the only real “check” on Trump
The judge could find that Trump or other administration officials are “in contempt of court”. When that happens, the person in contempt is usually first hit with fines and then eventually the threat of arrest. But that arrest would have to be carried out by the U.S. Marshal Service, which is an agency under the control of Trump and his loyal Attorney General, Pam Bondi.
Congress has the authority to impeach the president when he breaks the law. But for the Senate to convict him, 20 Republicans would have to turn against Trump. And even the Democrats are unlikely to be interested in such a move – they’ve already essentially adopted Trump’s narrative that undocumented immigrants are dangerous criminals. They do not have the political backbone to stand up and challenge the basic premise of Trump’s racist crackdown on immigrants, even if the most foundational democratic rights depend on it.
The “checks and balances” in this so-called democracy are falling apart. No judge or politician is coming to the rescue. Only the people can stop Trump from asserting absolute power by taking to the streets in a fighting movement that demonstrates the massive opposition that exists to Trump’s agenda.
