The Constitutional Crisis May be Upon Us

With Trump openly challenging the courts, democracy defenders must draw a line in the sand

It’s well past Day One, and Donald Trump seems to be continuing to embrace the role of dictator. He and his minions have asserted the power to snatch anyone off the streets under the pretext of a wartime statute and ship them off to a hellish foreign prison; to ignore or (at the least try) to outfox federal judges; to call for judges’ impeachment if they cross him; and to intimidate into silence critical reporting of all of this.

The New York Times reported on Tuesday, “President Trump attacked a federal judge who ordered a pause in deportations being carried out under an obscure wartime law, calling him a ‘Radical Left Lunatic’ in a social media post as administration lawyers asserted that the judge had no power to stop the ejections.” This follows a series of statements and actions seemingly designed to egg on the courts toward a constitutional crisis.

Indeed, that latest outburst garnered an extraordinary public rebuke from Chief Justice John Roberts. “For more than two centuries,” the chief justice wrote in an issued statement, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

Before the case concerning invocation of the Alien and Enemies Act reached the court, border czar Tom Homan declared, “We’re not stopping. I don’t care what the judges think — I don’t care what the left thinks. We’re coming.”

Once in court, the “Justice” Department attorneys denied the court had any business interfering with Trump’s deportation. When that didn’t work, they tried a premature appeal, which was swiftly rejected.

It soon became evident the flights had not stopped, despite having been ordered to do so by the judge. Secretary of State (again, Secretary of State) Marco Rubio retweeted the El Salvadorian president’s cruel boast (“Oopsie… too late”), confirming that the prisoners had been delivered.

When it was brought to the court’s attention that the “Justice” Department may have failed to comply with the court’s TRO, the judge ordered the parties back. The Trump regime gave District Court Judge James Boasberg conflicting reasons (to grossly understate them) for their failure to comply fully:

• The judge could not order a plane over international waters to return. (Utterly preposterous.)

• Even if barred by the AEA, Trump has power directly under Article II to conduct this unprecedented action. (If so, why invoke the AEA at all?)

• The judge’s oral order to turn planes around wasn’t really valid, so they were waiting for the written opinion. (What?! A court order is a court order. Period.)

At the hearing to consider whether the government had violated Boasberg’s order, the DOJ lawyer refused to clarify the timeline of events—or to even explain why he could not, or would not, give the judge the information.

As the New York Times reported: [“Justice” Department lawyer, Abhishek] Kambli repeatedly refused to say anything about the flights, citing “national security.” He simply reiterated the government’s position that it had done nothing to violate Judge Boasberg’s order.

Even before the hearing began, “Justice” Department officials tried to have it canceled, writing to Judge Boasberg in the late afternoon to tell him there was no point in coming to court since they did not intend to provide him with any additional information. In an even more astonishing move, the department sent a letter to the federal appeals court sitting over Judge Boasberg, asking it to remove him from the proceedings by citing what it described as his “highly unusual and improper procedures” in handling the case.

Whether or not the Trump gang intentionally violated the order, it is goading the courts and declaring itself to be unaccountable to the judicial branch. If not technically in contempt of the court’s order, it is acting contemptuously toward the entire federal judiciary. If allowed to snub federal courts, the Trump regime will have morphed into a dictatorship. What else can you call a regime that snatches potentially innocent people off the street, drops them off into a foreign hellhole, rejects judicial review, and boasts about it?

There is debate as to whether democracy defenders should draw the line in the sand on this issue. Frankly, they have no choice. You do not get to pick your constitutional crises. Chief Justice Roberts recognized the moment; the rest of us must do the same.

Alleged members of a Venezuelan gang may allow the Trump regime to play the national security card. Nevermind. When serious breaches of constitutional disdain and disregard for the courts become evident, lines must be drawn.

Aside from the technical issue of contempt, Trump is asserting his right to ignore the courts. With uniformly critical coverage of this dangerous step, we have the responsibility and opportunity to peacefully mobilize and demand that lawmakers (at the very least) hold hearings.

Democratic politicians may not be wowing the public, but that is not where our attention or efforts belong. Remember: there is no substitute for mass, collective, and peaceful action. Brian Klass, author of Fluke: Chance, Chaos, and Why Everything We Do Matters, and expert in democratic movements, recently wrote:

Democracy doesn’t get saved one post at a time. Authoritarians are delighted when their opponents only channel their anger into typed outrage that generates dopamine through clicks from like-minded partisans. Elon Musk will be constrained far more by Tesla boycotts and the prospect of plummeting sales figures than by mean memes. Donald Trump hates bad optics—and mass protests are terrible optics for a wannabe despot who (falsely) claims a “landslide” popular mandate.

There’s no magic rabbit about to be pulled out of a hat to push back against powerful anti-democratic forces. Targeted boycotts, consistent mass protests, and, eventually, coordinated general strikes—along with political organizing that puts pressure on complicit politicians while laying the groundwork for a future electoral surge—remain the tried and tested tools of effective pro-democracy opposition.

Fortunately, a host of protest actions will take place this week, and a day of national protest, dubbed Hands Off, has been set for April 5.

Pushback to the lawless Trump team must come from all segments of society—business and labor, elected leaders, ordinary citizens, lawyers, librarians, former officials, etc.—of whatever political persuasion. We need to unite on a single issue: Will we have a Constitution that protects democracy?

As Adam Kinzinger said in our interview this week:

“On the big picture, recognize that this is not a battle of beliefs; this is not a battle of ‘you want this tax rate, I want this tax rate,’ even the differences on gun policy, abortion, anything like that. This is simply a battle of ‘Do you believe in democracy or don't you?’”

He urged, “don't look for people that think the exact same,” but rather, find those who may disagree but are committed to the cause of democracy.

In sum, whether recently in Georgia, Hungary, Romania, and Serbia—or in Poland in 2023—defenders of democracy have turned out in mass, peaceful protests. They knew that when the moment presented itself, they had to act. They knew that broad, collective action cutting across ideological, economic, social, and religious lines is essential to preserving democracy. Americans must follow their example.