Opinion: Just two months in, Trump’s constitutional crisis has arrived

March 15, 2024 at approximately 11:10 PM. That’s when the United States entered a constitutional crisis which the separation of powers laid out by the nation’s founding fathers did not prevent and does not provide a pathway out of. It took just 54 days of the second Trump administration to reach this point. 

There’s no firm definition for the term “constitutional crisis,” but it can be understood as when at least two of the three branches of the federal government come into conflict with one another in a way which legal and civic procedures cannot disentangle – something which is often discussed in American politics but rarely actually seen. In this case, the two branches in conflict are the executive and judicial branches, with the former repeatedly declaring itself exempt from the jurisdiction of the latter. 

As with so much about the ongoing deterioration of the republic, the constitutional crisis was spurred by the right-wing’s disdain for migrants. On Saturday, the Trump administration openly defied federal court orders directing them to halt the planned deportation of 238 Venezuelan migrants to El Salvador, where the country’s aspiring young despot, Nayib Bukele, has agreed to house U.S. deportees. When Judge James E. Boasberg of the U.S. Circuit Court in D.C. handed down the order, some of the deportation planes were already in the air – something the order acknowledged when directing them to turn around and return to the United States before touching down in El Salvador. Not only did those airborne planes land in El Salvador against the judge’s ruling, but at least one of the deportation flights proceeded to take place, leaving the United States after the ruling. 

Now, 238 migrants who were entitled to due process under the law in the United States (even if they were undocumented immigrants – this is a matter of extremely settled law), have disappeared into Bukele’s rapidly expanding network of prisons and are now out of reach of U.S. law.

Given that judicial orders are enforced by the U.S. Marshals Service, which answers to Trump-appointed Attorney General Pam Bondi, there is no hope that the judiciary will be able to enforce its rulings in cases like this one where the administration chooses to defy it. 

For its part, the administration says that it “did not ‘violate a court order’” in part because the order “had no basis in law.” Though it probably goes without saying, this is false. True to form, however, many in the mainstream media and political power establishment are hesitant to call it what it is. Even though the timing of the flights has been laid out in black and white, major outlets and politicians are still talking about “approaching” a constitutional crisis. On MSNBC on Tuesday night, Sen. Chuck Schumer declared that we are “not there yet.” He is wrong.

While the administration’s supporters gleefully defend (and even celebrate) the illegal move, reveling in the arrival of the brutality their chosen president promised to inflict on migrants, few seem to have paused to drink in the details of the lawless act — or realized that the precedent set this weekend could very well strip them of their rights, too.

Most of the Trump administration’s anti-immigrant rhetoric has centered around “gang members” and “migrant crime,” albeit by painting all immigrants as criminals, but the actions his administration has taken in the first two months of returning to power show that no immigrant is safe. In recent weeks, the administration has stepped up persecution of non-criminal migrants, as well as green card holders, work visa recipients, and other lawful permanent residents with no criminal records to speak of. 

In late January, Chicago business owner Abel Orozco Ortega was detained by Immigration and Customs Enforcement officers. Ortega does not have legal status, but he doesn’t have a criminal record either, and has spent nearly thirty years as a resident of the United States and a contributing member of its community. Ortega has been held in ICE custody for the last 7 weeks. 

Brady Bartell, a Wisconsin man who voted for Donald Trump, was shocked last month when his Peruvian wife, Camila Muñoz – who had arrived in the country on a visa, always paid her taxes, and married an American man – was taken away by ICE. Muñoz remains in detention in Louisiana, 1,000 miles from her husband.

In New York, immigration authorities detained Mahmoud Khalil, a 30 year-old Syrian-born immigrant who, in addition to being a lawful permanent resident with a green card, is married to an American woman who is currently eight months pregnant with their child. In Khalil’s case, chillingly, no one even alleges that the man committed a crime. Instead, he is jailed and faces deportation for his role as a mediator in the protests which occurred at his alma mater, Columbia University, in opposition to Israel’s actions in Gaza. 

All of these people have certain protections under the U.S. Constitution. Any of them could have been placed on a flight to El Salvador, disappeared into one of the world’s largest prisons, and never heard from again.

Trump supporters continue to cheer on the actions taken against non-criminal immigrants like Ortega or lawful permanent residents like Khalil, likely comforted by the fact that they think it’s only “those people” being jackbooted – Hispanic people, a Muslim man like Khalil, brown people of all kinds. But the administration’s actions have already shown that citizens are not safe from this treatment, either. 

In January, ICE officials conducting sweeps in New Jersey detained, questioned, and challenged the citizenship of an American man who, in addition to being a citizen, is a military veteran.

Earlier this month in northern Virginia, another Trump supporter learned that lesson the hard way. Jensy Machado was driving to work when he was pulled over. His truck was surrounded and he was handcuffed by an immigration official who approached him with an unholstered weapon. When he told the arresting officers that he was an American citizen, they didn’t believe him. Though Machado was eventually released without being taken to detention after showing the officers his license, he believes that the event occurred entirely because he is “Hispanic-looking.”

The administration’s actions have not only shown that citizens may be hassled by Trump’s immigration enforcement goons, they have shown that citizens cannot rely on their constitutional rights for protection. Why? Because the venue where those rights are brought to bear is the court, and the Trump administration has declared the court null and void in these matters.

“We’re not stopping,” Trump’s “border czar”, Tom Homan, said on Monday. “I don’t care what the judges think.”

Trump himself, meanwhile, has said that Judge Boasberg “was not elected President” and “should be IMPEACHED.” Other high-ranking members of his administration, including Vice President J.D. Vance and “special government employee” Elon Musk, have questioned the authority of the courts even more broadly. The latest showdown over deportations to El Salvador is not an aberration, it is a linear escalation in a premeditated campaign to defang the courts, and it has implications for all of us.

Most of the detained migrants, citizens, and lawful permanent residents listed here have not been given a single hearing yet. They are being held without arraignment and, in almost all cases, deprived of their Fifth Amendment right to due process. The 238 men deported to El Salvador in violation of a court order on Saturday were deprived of due process as well. As a result – and I want you to really think about this part – there is no way to know if any of them were U.S. citizens. 

The deportees were vetted entirely by ICE, the same organization which keeps wrongfully arresting citizens, with no oversight or confirmation by any independent body. If they had been given access to due process, we might know who they are and if any of them are citizens, but due process was withheld from them.

If Jensy Machado had not had his drivers license on him the day he was stopped by ICE in Virginia, he would likely still be in custody. He likely would not have faced a judge yet, or had any opportunity to prove either his innocence or his citizenship. And if someone had decided that his name was a little too similar to an alleged member of Tren de Aragua or Mara Salvatrucha or whatever other boogieman has been conjured for the purpose, what’s to say he would not have ended up on a flight to El Salvador himself? A citizen, a man who voted for Donald Trump, could find himself effectively stripped of his U.S. citizenship and forcibly deported to a dictator’s torture-prison, where he would never be heard from again. 

I would ask you to imagine how long it might be until this happens to a U.S. citizen, but we can’t even know whether it already has. How long, then, until it happens to you?

Editor’s note: This opinion column first appeared on the Colorado Times Recorder website. Logan M. Davis is a progressive researcher and writer based in Denver, specializing in the threat posed by right-wing extremism. He is also a political communications consultant. He is a proud member of Denver NewsGuild and co-founder of the Political Workers Guild of Colorado.