WASHINGTON — However scared you might be for our democracy, you are not scared enough.
The president of the United States, from the moment he regained the office, has been step-by-step following the autocrat’s playbook. He has gone after universities for not obeying his decrees. He has extorted law firms for having on staff, or just once-upon-a-time having had on staff, people who crossed him. He has targeted for prosecution former aides who challenged him. He has arrested a local judge for not helping him round up migrants for deportation. He has attacked the free press for not bending to his will. On his very first day in office, he released from prison hundreds of domestic terrorists, effectively a personal militia, who assaulted police officers in his name.
And now, not 100 days into his term, he has done what so many democracy advocates have feared he would eventually do, something that no president has dared try in the more than two centuries since Marbury v. Madison’s precedent that the judiciary would be the ultimate authority on what is and what is not legal: He is straight-up defying the United States Supreme Court.
And — here is the truly terrifying part — he is getting away with it. No one is getting fined. No one is going to jail. In fact, much of America doesn’t even realize it’s happening.
The case at hand is nominally about a migrant who came to this country illegally but who for several years now had been raising a family in Maryland and training to be a sheet metal worker. But in reality it is about whether anyone or any institution has any check on Donald Trump’s ability to claim near limitless power over all our lives simply by declaring a national security “emergency.”
For three years, Trump and his apologist echo chamber repeated, over and over, that the flood of migrants coming over the southern border without authorization constituted an “invasion.”
Of course, it was no such thing. However much a person chooses to hate illegal immigration, whether based on a strict, rules-are-rules belief system or a pragmatic concern for the effect on border communities or even straight-up racism, the migrants coming here these past several years did not represent an invading army, regardless of how frequently Stephen Miller and his allies tossed around the phrase “military-aged men.”
The overwhelming majority of migrants come to this country for the same reason all of our ancestors came here: To make a better life for themselves and their children. For generations now, those entering from Mexico have picked our vegetables, made the beds and cleaned the toilets in our hotels, and laid shingles on our roofs under a scorching summer sun. In short, they’ve been doing the work that native-born Americans have been unwilling do to do.
To contrast that against an actual invasion, check out what’s happening in Eastern Europe right now. Notice that the Russians aren’t trying to get jobs and make new lives in Ukraine. They’re trying to kill the people who already live there and steal their land.
It would have been one thing for Trump to drop the “invasion” talk after he won. Of course, though, he did not.
In executive order after executive order, public statement after public statement, Trump has cited the presence of migrants in the country illegally as an “emergency” to justify sweeping powers that allow him to round up people and ship them to a foreign prison where torture is routine where they will remain, possibly forever.
And that’s not the only emergency. There’s an energy “emergency” that allows Trump to trample environmental laws to bring about an infinite amount of oil-drilling. There’s an economic “emergency” that lets him impose tariffs on whatever countries’ imports he wants, notwithstanding the Constitution that specifically grants the power of taxation to Congress.
The dangers in those emergency authorities, though, pale before the ones given to a U.S. president facing a literal invasion, which is why the confrontation between Trump and the U.S. Supreme Court over purported members of criminal gangs has such high stakes.
The justices, finally, appear to be standing up to Trump’s autocratic tendencies, both in the case of Kilmar Abrego Garcia’s alleged membership in the El Salvador-based MS-13 as well as the hundreds of migrants accused of belonging to the Venezuelan gang Tren de Aragua.
After Trump and his Department of Justice ignored the Supreme Court in the case of Abrego Garcia — claiming that its order to “facilitate” his return to the United States does not actually mean what it says — the justices flatly forbade Trump from shipping any more Venezuelans to the El Salvador torture prison until further notice.
The big question, so big, in fact, that the future of our democracy may well be riding on the answer, is what happens if and when the high court codifies its previous ruling and in more explicit language orders Trump to bring Abrego Garcia back? Or declares that he cannot use the 18th-century Alien Enemies Act when the nation is not actually at war?
Maybe Trump backs down and does as he is told. But if he doesn’t?
Perhaps it hasn’t occurred to many, maybe even most, Americans, that the Chief Justice of the United States commands no army, can summon no police force. Nor, for that matter, does Congress. They, and all of us, are dependent on Donald Trump and the police and military under his control to honor the Constitution and the rule of law.
If he can declare, by fiat, that MS-13 and Tren de Aragua are not mere criminal gangs engaging in violence, theft and extortion but are instead “terrorists” and “invaders” that justify his use of extraordinary and extrajudicial powers, why would he limit himself there? What’s to stop him from declaring that those who protest against him are agents of a foreign power and need to be rounded up and imprisoned? What prevents him from declaring that news media are “enemies of the people” and jailing them, as well? And what about all those disloyal judges who are trying to prevent him from “saving our country” — shouldn’t they be sent to El Salvador’s torture prison, too?
Yes, absolutely, this sounds alarmist, because we have a normalcy bias in this country. Nothing this bad has ever happened here, and therefore it cannot. And it is this failure of imagination, the same failure that refused to foresee Jan. 6 before Trump had unleashed his armed mob on the Capitol, that is again endangering the republic.
“If today the executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies?”
These words were written in an opinion in the days after the high court ordered Trump to “facilitate” Abrego Garcia’s return and with the Department of Justice still stonewalling. Their author is lifelong conservative Harvie Wilkinson, 41 years on the federal appellate court bench after his appointment there by Ronald Reagan. He concluded with a paragraph that was nothing short of chilling:
“We yet cling to the hope that it is not naïve to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”
Harvie Wilkinson is clearly scared for the republic. You should be, too.