Think we’re not in a constitutional crisis yet? We’re not. We’re in several. One involves Elon Musk and DOGE, barging their way into the United States Institute for Peace, created by Congress under Ronald Reagan, with DOGE staffers apparently ripping the organization’s logo off the wall. DOGE is not an arm of the government. It’s a quasi-private goon squad taking a machete across Washington, D.C., at the personal whims of two men. Any non-ideologically zealous court would toss its actions in five minutes—as indeed at least one already has, with respect to USAID.
There’s so much more. The revocation of birthright citizenship. The attempted federal spending freeze. The attempted firings of agency heads. The ordered removal of federal employees with civil service protections. That birthright citizenship order—contravening the plain text of the Constitution—was issued on Donald Trump’s very first day in office. Arguably, the constitutional crisis started right then and there. Since, three different judges have blocked the order.
But shocking as all that has been, nothing touches what Trump is trying to do to Judge James Boasberg over those three planes full of alleged Venezuelan gang members. The administration’s latest legal gambit, to invoke the state secrets privilege in an attempt not to have disclose any information about the detainees or the flights, amounts to an effort by Trump to say that he can take any action against anyone he deems a danger to the state. That’s an attempt at dictatorship.
Let’s go back in time. First of all, what was the Alien Enemies Act, whose authority Trump invoked to detain the Venezuelans? It was part of the Alien and Sedition Acts of 1798, passed by Congress under President John Adams. If you learned high-school history the way I did, you were told that passage of that law was, to put it mildly, not one of America’s finer moments. Passed as the young United States stood on the brink of war with France, with various French nationals milling about our cities, it gave the president extraordinary emergency powers. The next president, Thomas Jefferson, allowed all aspects of the broader law to expire except for the Alien Enemies Act, which allows the president to declare certain unnaturalized persons as “alien enemies.”
It’s been invoked only three times, all during wartime. It does include language referring to “any invasion or predatory incursion,” which is what Trump is claiming. But Georgetown law prof Steve Vladeck told NPR: “No one has tried to argue that that invasion or predatory incursion language could be used in any context other than a conventional war.” That is, until last week.
Meanwhile, the state secrets privilege has its roots way back in Aaron Burr’s treason trial, when the government suppressed a letter from a colonel to President Jefferson on the grounds that the letter contained state secrets. The Supreme Court didn’t speak on this until 1953, in United States v. Reynolds, which saw the first formal recognition of the privilege: Namely, that evidence in court proceedings could be excluded if the government says its disclosure would reveal state secrets. It was invoked a few times by George W. Bush after 9-11.
Now, Trump wants to use it to bar federal Judge James Boasberg from seeing specific information about two Saturday night flights to El Salvador with the Venezuelans aboard (what time they took off, where they were when Boasberg issued his initial order, etc.). Attorney General Pam Bondi (remember how she was supposed to be so much better than Matt Gaetz?) and her deputies argued that Boasberg’s requests for this information constitute “grave usurpations of the President’s powers under the Alien Enemies Act and his inherent Article II powers.”
Simultaneously, of course, Trump is demanding that Congress impeach Boasberg, calling him a “radical left lunatic” and a “local, unknown” judge. He’s the chief judge of the U.S. District Court for the District of Columbia. He was originally elevated to the federal bench by George W. Bush. John Roberts appointed him to a term on the Foreign Intelligence Surveillance Court. He once ruled against Hillary Clinton in a case involving her emails. And: He once ruled for Trump in a case involving his tax returns.
So now, we can summarize Trump’s position here. He invoked an ancient (and often criticized) law during non-wartime, which no president has ever done. A federal judge said hey, wait a minute and ordered the action ended (that is, he ordered those airplanes turned around). Trump ignored that order; the planes flew on. Now, Trump’s AG has invoked yet another obscure and controversial law in an effort to shut the judge up. And finally, Trump now demands that Congress impeach the judge, because of his refusal to accept the laws of the land.
It wasn’t some lefty who said, of these breaches, that Trump “has declared war on the rule of law in America.” That was conservative retired judge Michael Luttig.
Let us recognize the stakes: Today, it’s non-citizens who are the victims of Trump’s lawlessness. Maybe Trump will stop there. But if this gets to the Supreme Court and a majority there upholds Trump’s position, do we really think Trump won’t at least be sorely tempted to galumph his way through that open door? What will happen when a future round-up includes naturalized citizens? Or even birthright citizens, a category we know Trump wants to eliminate? And what happens when it simply becomes anyone who the President doesn’t like?
And if the House votes to impeach Boasberg, do we really think that won’t chill and intimidate other judges? We don’t have to wait for Trump to defy the Supreme Court to think it’s a constitutional crisis. We are in crises, plural, right now. And it’s only been two months.
This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.
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