The Constitutional Crisis Is Here

By shipping men to a Salvadoran prison without due process, the Trump administration has begun defying court orders in earnest.

(Photo by Kayla Bartkowski/Getty Images)

THE LONG-AWAITED CONSTITUTIONAL CRISIS has now arrived. It is time for a court to say so.

On Saturday night, James Boasberg, a federal judge in the District of Columbia, issued a pair of emergency orders. The government, he had just been told at a hastily convened hearing, was removing from the country, without due process, more than a hundred alleged gang members. The planes, he learned, were already in the air. To justify this stunning move, President Trump had issued a proclamation invoking the Alien Enemies Act of 1798.

At around 6:45 p.m., Boasberg orally ordered the planes turned around. “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” he ruled from the bench. “This is something that you need to make sure is complied with immediately.”

At 7:26 p.m., he issued a brief written order barring the government from relying on the Alien Enemies Act to remove noncitizens from the country.

The government ignored both orders.

Early the next morning, El Salvador’s president, Nayib Bukele, posted on X a video showing the renditioned men arriving in his country and being hauled to prison. The United States is paying El Salvador to detain them in CECOT, its most repressive gang penitentiary.

“Oopsie . . . Too late,” Bukele wrote mockingly, in a social media post about Judge Boasberg’s stillborn orders.

On Monday, Boasberg summoned the government back to court. The Justice Department’s attorney argued that Boasberg’s oral order wasn’t binding because it wasn’t in writing. (According to inside sources, the planes took off during the hearing itself.)

Boasberg was incredulous. “Your first argument,” he asked, “is when I said those things, because I didn’t say it in a minute order, . . . you didn’t have to comply?”

The government has yet to disclose when exactly the planes departed. Boasberg has now ordered it to do so in a sealed filing by noon Wednesday.

---

THIS IS NOT A SET OF PROCEDURAL MISSTEPS. It is not simple incompetence. It is malice toward our constitutional structure. Simply put, the Trump administration has begun its defiance of the courts in earnest.

The Alien Enemies Act permits the president to remove “alien enemies” whose “nation or government” is waging “a declared war” or mounting an “invasion or predatory incursion” against the United States.

The administration alleges that the men sent to El Salvador belong to Tren de Aragua, a Venezuelan gang. It reasons as follows. First, Tren de Aragua qualifies as a “nation or government,” because it is part of a Venezuelan “hybrid criminal state.” Second, the gang’s very presence on U.S. soil amounts to an “invasion or predatory incursion.”

This is a breathtaking theory. Yet the administration contends that it is unreviewable in court. It cites a 1946 D.C. Circuit decision, Citizens Protective League v. Clark, which indeed says that the president may generally remove enemy aliens “without resort or recourse to the courts.” But the decision did not involve the kind of bad-faith statutory interpretation we’re seeing here. It goes on, moreover, to acknowledge that “whether the individual involved is or is not an alien enemy” remains “open to judicial determination.”

Even that inquiry, the administration insists, is foreclosed. In its view, the president alone gets to determine what counts as an “invasion,” what counts as a “government,” and who counts as an “enemy alien.” Add it all up, and the president is asserting an unreviewable power to seize any person off the street and ship him to a dungeon abroad.

The administration claims that it “carefully vetted” each removed individual to ensure gang affiliation. That is not how due process works. Even a trustworthy prosecutor must prove his case in court—and this administration has repeatedly shown that it cannot be trusted. Sadly but unsurprisingly, credible reports are already emerging that some of the men removed last weekend are not gang members at all. The potential miscarriage of justice is staggering.

There was no need for haste. The administration did not have to hustle these men onto planes the same day Trump’s proclamation became public. It did not have to dispatch the planes in the middle of a court hearing. Sitting in custody, the men posed no imminent threat; there was no ticking time bomb. The administration’s claim of urgency is an obvious fabrication.

What we’re witnessing is a setup. The goal is to brush off a court order and get away with it. The administration barely pretends otherwise. In the courtroom, it offers threadbare excuses. Outside, its officials say the quiet part out loud. Trump denounced Boasberg as a “Radical Left Lunatic” and called for his impeachment (prompting Chief Justice John Roberts to issue a rare statement of reproach). Trump’s press secretary claimed that the administration “did not refuse to comply” with Boasberg’s orders, then promptly admitted that it had—because the orders lacked a “lawful basis” and came from “a single judge in a single city.”

“We’re not stopping,” Thomas Homan, Trump’s border czar, announced on Monday. “I don’t care what the judges think. I don’t care what the left thinks. We’re coming.”

---

JUDGE BOASBERG FINDS HIMSELF in an unenviable position. If he orders the men returned, Bukele will scoff at him. If he imposes sanctions, the administration is likely to flout them. (It has already disobeyed one direct command. Why would it heed more of them?)

The grim reality is that the administration does not believe in the rule of law. As an adviser reportedly told Rolling Stone, Trump has an army and the judiciary does not. “Are they going to come and arrest him?” (Where have we heard that before?)

Boasberg should continue to demand information and compliance. He should uphold what order he can. But he should not deceive himself. The administration wants to place itself outside the legal system. In Trump’s disturbing words: “He who saves his Country does not violate any Law.”

What, then, should Boasberg do?

He should announce, calmly, frankly, and clearly, that we have entered a constitutional crisis.

In ordinary times, the power of a federal judge can seem vast. In extraordinary times, however, a judge’s only real strength may be his capacity to acknowledge his weakness. A judge who cannot hold the executive accountable to the law should say as much, firmly and publicly. A judge who can no longer uphold the Constitution remains well equipped to reveal that emergency to the nation.

Boasberg might look to Justice Robert Jackson’s famous dissent in Korematsu v. United States (1944)—the notorious decision upholding the internment of Japanese Americans during World War II. Jackson believed that he could not stop the military from taking drastic action—but he refused to grant such action a legal imprimatur.

“A civil court cannot be made to enforce an order which violates constitutional limitations,” he insisted, “even if it is a reasonable exercise of military authority.” At some point, he explained, the republic’s fate has been thrown to forces beyond the court’s control:

If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

Jackson refused to take part in what amounted, in his mind, to a hollow proceeding. “I would not lead people to rely on this Court,” he wrote, “for a review that seems to me wholly delusive.” In no position (he thought) to issue a meaningful ruling, Jackson opted instead to issue a warning and sound an alarm.

If Trump and his administration refuse to submit to judicial authority, Judge Boasberg should refuse to supply the dignity and ritual of proper judicial proceedings. He should declare—openly, bluntly, and often—that we are no longer engaged in constitutional business as usual. As a last resort, he should dismiss any part of the case that has, through persistent executive recalcitrance, devolved into a sham lawsuit. Responding to a defendant’s misconduct with dismissal—seemingly rewarding the defendant with his desired outcome but in fact confirming that the court, locked in an unequal contest with an aspiring autocrat, has effectively been closed—would be a radical act. But we have stumbled into radical times.

Judge Boasberg’s final power is to tell the truth.