Since Donald Trump was sworn into office in January, his administration has repeatedly defied the rule of law, and the U.S. Constitution’s checks and balances on executive power. Trump and his top campaign contributor billionaire Elon Musk are attempting to eliminate entire federal agencies authorized and funded by Congress and fire hundreds of thousands of government workers. At the same time, the twice-impeached, convicted felon has issued dozens of executive orders, driven by a desire for revenge to punish journalists, media outlets, politicians, judges, law firms, corporate CEOs, universities and anyone who Trump perceives as a political enemy.
In a case that could deepen the constitutional crisis precipitated by Trump’s continuing challenge to judicial branch authority, a federal judge has refused to lift his block on deportations of alleged Venezuelan Tren de Aragua gang members to an El Salvador prison, dubiously ordered under authority of the 1798 Alien Enemies Act. In a March 24, hearing lawyers representing the Trump regime refused to give Federal District Court Judge James Boasberg the times of departure of two government flights carrying the Venezuelan deportees on March 15, stonewalling the judge’s investigation into verifying that Trump officials had defied his explicit order for the planes to return to the U.S.
Between The Lines’ Scott Harris spoke with Christopher Wright Durocher, vice president for program and policy with the American Constitution Society. Here he assesses the threat posed to democracy by the Trump regime’s authoritarian actions over the past eight weeks, declaring the U.S. is now in the midst of a constitutional crisis.
SCOTT HARRIS: Thank you for that summary, Christopher. There are more than 100 pending lawsuits now attempting to reverse Trump administration executive orders and other actions defying the U.S. Constitution and rule of law. Many of these cases may in the end be decided by the U.S. Supreme Court, which is dominated by a six to three super majority of conservative justices who may — as they did in providing Trump with absolute immunity from criminal prosecution — they could side with Trump and tear down some of the essential democratic guardrails established in the U.S. Constitution.
And then of course, you have another scenario where they uphold the Constitution, these justices, a majority of them, and Trump ignores it. Then we are certainly in a very different place. We don’t have a lot of time to get into this, but maybe paint a picture of the crises that we may face in just a matter of weeks here.
CHRISTOPHER WRIGHT DUROCHER: Those two opposing scenarios are both equally frightening. There is a concern that this Supreme Court could rubber stamp the Trump administration’s actions in these cases and essentially write itself and write the remainder of the judiciary out of the picture, basically saying it doesn’t matter what Congress does, it doesn’t matter what the judiciary says. If the president says it, then it is the law.
In that case, we are looking at an authoritarian dictatorship. There’s no two ways about it. It’s a hard thing to argue against if the Supreme Court does not provide any checks.
The other concern, obviously, is if the Trump administration ignores a Supreme Court that strikes him down. And there’s an adage that courts have no armies and they have no money. And so really all they have is their legitimacy and the respect of the other two branches.
The question is, will the Supreme Court blink? Will the Trump administration blink? And will there be sufficient outcry if the court goes along with these Trump administration actions, or will they be met with apathy that will determine sort how much further these power grabs can go?
One of my biggest concerns is that in an effort to maintain their legitimacy, both the Supreme Court and the lower courts, afraid that the Trump administration will flout adverse decisions, will go along with them just to sort of maintain at least the appearance of their continued legitimacy and their continued power.
It is certainly a tipping point. Just because we’re in a constitutional crisis now, which we are, doesn’t mean that it can’t be a much worse constitutional crisis. And so we should all be watching closely to see how lower courts handle those 100+ cases, as you said, and how the Supreme Court ultimately responds to some of the most egregious power grabs by the Trump administration.
For more information, visit the American Constitution Society at acslaw.org.
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