What is a Constitutional Crisis Anyway?
We are having one. What is it? Why should I worry? Or care?
It’s hard to consume any political media these days without seeing the phrase “constitutional crisis” everywhere, and for good reason. What the hell does it even mean? Should we be concerned, or is this just more political hyperbole designed to drive clicks? While I am not a legal scholar (or any type of scholar, to be honest), I can take a shot at explaining what I believe this crisis is, how we got here, and what to pay attention to going forward. Oh, the answers to the other questions are: Yes, we should be very concerned and no, it’s not just hyperbole. This is happening.
First, A Definition
USLegal.com defines a Constitutional Crisis as:
A constitutional crisis refers to a situation dealing with the inability to resolve a disagreement involving the governing constitution of a political body.
Ok, that’s relatively anodyne and legalistic sounding. If that’s all it is, why are so many people so concerned? Well, the definition goes on to say:
Typically, a dispute or an interpretation or violation of a provision in the constitution between different branches of government is involved.
Ah, that seems a little more distressing. After all, no one wants the constitution violated, right? Right? Oh, shit. There’s more.
A constitutional crisis may threaten to break down government function.
Yeeeaaahhh, that sounds bad. It also sounds like it’s exactly what Orange Foolius wants.1
Wait, Which Crisis Are We Talking About Again?
It’s depressing to admit, but we need to clarify exactly which situation is the crisis being discussed here. We could choose from a smorgasbord of illiberal acts, including Trump’s blatant ignoring of the law with regard to appointing Elon Musk as the head of DOGE2. Or maybe we could talk about how, prior to his inauguration, he was able to overturn a ban on TikTok that was passed by Congress, signed into law by President Biden, and upheld via a Supreme Court decision. Perhaps we could investigate the summary firing of 17 Inspectors General, without the legally required 30-day notice to Congress? Trust me, there are, unfortunately, many more examples, but today I want to focus on one specific issue, especially since I tend to believe that it thrust us into this crisis a little bit earlier than T2.0. intended.
The Made for TV Deportation
Late Friday night, March 14th, the President issued an executive order invoking the 1798 Alien Enemies Act (AEA). This act gives the president “wide powers to imprison and deport noncitizens in times of war” (emphasis added). Before last weekend, it had been used three times in our nation’s history; during the wars of 1812, World War I and World War II. It was also the legal rationale used to justify the internment of Germans, Italians, and Japanese. What could possibly go wrong with that sterling history?
It is important to note that while Trump signed the order on Friday, the government did not announce anything right away. Judging from how things ended up playing out, it can be argued that this was to be a television event. There were cameras and drones set up to record the deportees’ arrival in El Salvador. A very highly polished and well produced “sizzle reel” was released, showing the deportees getting dragged from the planes, having their heads shaved, and being frog-walked into CECOT, El Salvador’s most notorious prison camp.
When you consider all of this, it is not a long logical leap to assume that the Trump admin wanted to be able to announce their deportation after the fact, complete with video. After all, Trump claims to know what would make great TV, and this would be a “Promises Made, Promises Kept” moment that also happened to make it far harder for anyone to challenge the deportations legally. There was one minor problem with the plan… it leaked. Around 2am on Saturday morning the ACLU filed a lawsuit on behalf of five of the men to prevent their “imminent removal”. Oops.
The Timeline
The overnight filing of the lawsuit set in motion a frantic chain of events. ABC News has a thorough timeline explaining the details. Here are the Cliff’s Notes:
On Saturday morning, US District Judge James Boasberg3 issues a temporary restraining order (TRO) barring the government from deporting the five plaintiffs in hte ACLU lawsuit.
The White House issues a press release finally announcing the invocation of the AEA to begin deporting the alleged members of Tren de Aragua (TdA).
The judge pauses an emergency hearing around 5:22pm so that the DoJ lawyers can confirm whether or not the Trump admin is actively deporting noncitizens pursuant to the act, saying that he is now considering broadening his TRO to cover any noncitizen from being deported. The timing here is critical, because:
At 5:25pm and 5:44pm two planes carrying deportees take off from a Texas airport. We will come back to this later. Note: as far as I have seen, the five plaintiffs are not on the planes.
At 6:05pm the hearing is reconvened, and DoJ is at first reluctant to admit that deportations are ongoing but finally do so. At 6:44pm Boasberg says he will issue a TRO blocking the deportation of any noncitizen. He orders the DoJ to immediately turn around the two planes.
At 7:26pm Boasberg issues a written TRO. It is important to note that the written TRO does not include his demand to turn the planes around. This should not matter, as he ordered it verbally and it is part of the court record.
The flights are never turned around, and after landing in Honduras for a brief stop, they continue on to El Salvador, where the dog and pony show unfurls and home videos are made for Trump, Stephen Miller, and MAGA to masturbate over when things aren’t going their way.4
The Legal Arguments
The AEA is specifically and clearly intended to be used in times of declared war. Further, it is designed to be enacted against an adversarial foreign government. Obviously neither of these conditions have been met in this situation, no matter how often Trump and Co. framed the immigration issue as an “invasion” of the United States. The only reason they are using this mechanism is that it grants specific powers directly to the president.
In addition to the shaky legal ground on which the invocation of the AEA stands we have the pesky Constitution and its troublesome Due Process protections. You see, these men for the most part have not been convicted. Of anything. They are almost all alleged to be members of TdA, but when pressed as to how the administration has determined this gang status, the answer is basically “trust me, bro”. There has already been at least one case where a man was deported who was in the asylum process, had been accused of being in TdA because of a tattoo he had, and was shipped out. His immigration attorney was not notified, even though he was due to appear at a hearing on Monday.
Given the less than stellar track record of the current administration with regard to rushing things for optics purposes and summarily fucking said things up, I am gonna go out on a limb and guess that this isn’t the only potentially innocent person that woke up in El Salvador Saturday night.
But They Are Criminals!
Are they though? How do we know? Because this admin told us they were? And if we just allow these people to be removed without due process, what is in place to stop the admin from sending US Citizens who they don’t agree with on an all expenses paid vacation to El Salvador?
The Trump administration is constantly harping on the danger that TdA members pose to the American public, and I will gladly concede that a violent gang marauding through our neighborhoods would be a significant cause for concern. But these guys are not that. They were all already in custody. There was no need for expedited action to remove these men, other than perhaps the late return fees for the drones and cameras in El Salvador were steep.
In a truly shocking declaration submitted to the court, Acting ICE Field Office Director Robert Cerna admitted that “many” of the deportees had not committed a crime. His justification for their removal included this banger:
“The lack of criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”
Yes, you read that right. The deportees who do not have criminal records are even riskier than those who do. Cerna goes on to explain that in addition to the multitude of deportees guilty of thought-crime (allegedly), there were even some dudes who actually (allegedly) did actual criming. He takes the time to lay out his case:
A review of ICE databases reveals that numerous individuals removed under the AEA have arrests and convictions in the United States for dangerous offenses, including an individual alleged to have committed murder; an individual with pending state charges for aggravated assault with weapon and who was identified by state authorities related to an armed home invasion and kidnapping; an individual with a state arrest for harassment…
Despite Cerna mentioning arrests and convictions, his examples only include men who have not yet been convicted, and not that many of them. We have been led to believe that these flights were full of “murderers, rapists, the worst monsters”. Of course, the government could make this a lot easier if they would release the names of the men on the planes, their crimes, anything. But they have not and apparently will not.
Make no mistake, T2.0 planned this well5. They are doing exactly what they said they would throughout the campaign, exactly the things that pundits furrowed their brows over, claiming that it was all “rally talk” and that Trump wouldn’t actually do any of it. With this situation and Mahmoud Khalil, they are taking definitive action against unsympathetic people. This has the very much intended consequence of forcing those who are speaking out against these illiberal actions to appear as if they are supporting horrible people.6 It makes it easy for the administration to twist the blowback from those defending the law and the Constitution into supporting terrorists, murderers and rapists. And it’s working.
So Where Do We Stand Right Now?
I am old enough to remember Schoolhouse Rock, and damned if they didn’t cover this back then…
For those who were sadly robbed of Saturday Morning Cartoons, or Monday through Friday civics classes, a quick reminder of how the supposed co-equal branches of government work in this here US of A:
The Legislative Branch (Congress) - Writes the laws
The Judicial Branch (Courts) - Interprets the laws
The Executive Branch (Presidency) - Enforces the laws
It really seems pretty simple and elegant, no? Thing is, the founders based all of this on each branch doing their jobs, which sometimes may include two of the three branches pushing back if the third ever tried to get a little big for its britches. They probably never envisioned a situation where one branch would simply abdicate responsibility in nearly every way, clearing the way for another branch to run roughshod over the third. But that is precisely what we are experiencing right now.
The Executive has already usurped Congress’ role, as all of these procedures are being carried out under the umbrella of an executive order while Congress has been notoriously silent. Now the Executive is arguing in court (and in the media) that they alone can impress their interpretation of the law on the situation. That’s simply not how this is supposed to work.
There is some merit to the argument that a single district judge should probably not be able to issue orders that take effect nationwide, but this is not a novel situation. Many of the Biden administration’s loftier goals were stymied by Federal District Judges, including the several iterations of his Student Loan Forgiveness Plan. Current Special Advisor to the President and full-time ghoul Stephen Miller spent all of the Biden administration judge-shopping to fight against Biden initiatives or for right wing efforts. So while I agree on principle, it’s not as if this is a new wrinkle just ginned up to stop Trump. Further, what is the alternative? Would plaintiffs have to file in all 50 states or 94 Federal District Courts in order to stop a nationwide law that could be unconstitutional? There are mechanisms to address this, but that required Congress to actually do something.
Ok, What’s Next?
The judge has demanded some explanations. Whether or not his requests are satisfied remains to be seen, but so far the DoJ has been fighting back pretty hard. I came across this article by Corbin Barthold at The Bulwark who makes a pretty solid case for Boasberg to just announce, loud and clear, that we are no longer approaching a constitutional crisis, but have arrived at it. I don’t know that I agree, but Barthold makes a compelling case.
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.
Read the whole piece here:
One more point; I do wonder what exactly happened during that 42-minute break during Saturday’s hearing. The DoJ attorneys were supposedly “phoning home” to get confirmation that the President was going to deport noncitizens under the AEA. Remember though that the judge told them that he was leaning towards issuing a TRO banning any deportations. Three minutes after the break, the first plane took off. We may never know the content of the call that was made that afternoon, but the optics are pretty damned bad.
Whatever the judge decides to do, I fear that we have reached that point of no return. T2.0’s media surrogates have been laying the groundwork for Trump to defy a court order since the inauguration. Rolling Stone reports that a Trump adviser made the frightening observation that “Trump has the military. The Judicial does not”. I have no idea what happens if Trump blatantly defies a judge’s order, but I have a hard time understanding how we have a country if we don’t have laws.
Epilogue
Over the last few days, I have started to see several GOP types starting to use the phrase Constitutional Crisis, but in reverse, accusing the judge in the case of causing it. This concerns me to no end, because one thing the GOP in general, and this administration in particular are very good at is driving a narrative. If the Right makes Constitutional Crisis their talking point, they are likely to co-opt the term, as well as the minds of the casual observers. They have done this before with great success. Think “fake news”, “woke”, BLM or CRT.
If I were to try and discuss the countless ways the MAGA Message Machine engages in blatant hypocrisy, I would have to write full time and still wouldn’t be able to keep up. But while researching this piece, I came across this gem from Fallen Fox Star Megyn Kelly7. Just last month (February 15th) she had this to say: (emphasis added)
We are not at a constitutional crisis yet because Trump has not flipped the bird to any judge telling him he must do something. But do you know who has done that? Former President Joe Biden, and I don’t remember the people freaking out now saying anything back then.
All Trump has done so far is issue executive orders and then gotten sued, but you have the corporate media losing its mind. “Constitutional crisis” is the talking point dujour.
Just this past Wednesday, Kelly seems to have shifted her goal posts just a bit.
“This judge is losing his mind that Trump is not doing everything he’s commanding him to do,” Kelly added. “This is the closest thing we’ve seen yet to a constitutional crisis. You know how the left has been throwing that term around? And it’s not because of Trump. It’s because of a judge who thinks he’s the president.”
What a difference a month makes.
Take Care and Stay Strong
Sorry for the silliness (not sorry). Sometimes you just gotta drop a stupid nickname when you get tired of typing the same 5 letters…
Yeah, I know that they say that someone called “Amy Gleason” is the director of DOGE. Which, sure. That’s why she was in Trump’s first Cabinet meeting, holding court for nearly an hour. Oh, wait…
Boasberg, who was originally appointed to the Federal Bench by George W Bush and promoted by Barack Obama, has ruled both for and against Trump in the past. For example, he ordered Mike Pence to testify to a grand jury about Trump’s efforts to overturn the 2020 election, but he also denied an advocacy organization’s attempts to obtain Trump’s tax records. Pretty hard to hang the “Radical Left Judge” label on him, until you remember that is just Trumpian for “judge who rules against me”.
This may or may not be accurate.
Yet another example of how things are going to be much harder to fight this time around, as these people have had four years, sitting around all pissed off, to actually plan their fuckery.
I don’t personally know any of these people so I can’t speak to whether or not they are good or bad. I am just illustrating how the argument is going to play out. I do, however, know how the law works, and this ain’t it.
I do not understand how someone like Megyn Kelly (or Ted Cruz, or Marco Rubio, etc.) lives with themselves. Kelly was the subject of some seriously disgusting, misogynistic attacks from Trump before and during his first term, and yet here she is carrying water for him. It boggles the mind.