We live in dangerous times. The President of the United States seems intent on remodelling the US Constitution into an authoritarian state. Basic ideas like separation of powers and rule of law are being ignored. President Trump treats the Presidency as a tool for imposing his own values on all of the nations institutions. This is a President who values personal loyalty above all else. But the corollary of personal loyalty is sometimes revenge.
The terror
On 15 March 2025 US District Judge James Boasberg issued an emergency order directing the Executive branch of the US government to stop removal flights that were sending hundreds of alleged Venezuelan illegal immigrants to El Salvador. The Trump Administration has agreed a deal whereby El Salvador will house these people in Cecot Prison. In Spanish, this is , an acronym for Terrorism Confinement Centre, What exactly El Salvador gets in exchange is uncertain, but its probably money, along with not being an enemy of the US President, what I call The Wrath of Trump.
The deportations are being conducted under The Alien Enemies Act 1798. This is a piece of legislation so poorly regarded that the last time it was used was to intern Japanese Americans in 1942, under Executive Order 9066. This was upheld as constitutional by the US Supreme Court in Korematsu v. United States (1944). This decision was still technically good law until Trump v. Hawaii (2018), but no serious jurist has regarded it as correctly decided for decades. The Bush (43) Administration (2001-2009) had also sought to rely on this law in relation to the operation of Guantanamo Bay and other elements of the War on Terror but came up against the same problem: the law itself is terribly flawed. Its usages have been even worse. And most damningly, the law simply does not describe the factual situation as it currently exists in relation to these prisoners. The American legal system follows the English, in that there is no doctrine of disuse: laws do not cease to be laws because they have not been used for a long time, but we are still allowed to identify laws as just bad. The most infamous case in US history, Dred Scott v. John F.A. Sandford (1857) held that African American slaves were not and never could be citizens of the United States. It is easy to say this decision was legally wrong with hindsight. But the decision was clearly regarded as legally wrong at the time, as the outbreak of the American Civil War (1861-65) immediately after shows.
Not only is The Alien Enemies Act 1798 of hopelessly outdated and intended for a very different purpose than it is being used for, but, as alluded to above, it is doubtful if it applies to the prisoners in question. The prisoners were alleged members of two Venezuelan gangs, Tren de Aragua and MS-13. There are two problems with their removal under this piece of legislation:
- The Alien Enemies Act 1798 is clearly intended to be used during wartime. The text states that the Act can only be used in times of ‘declared war’ or when a foreign government threatens or undertakes an ‘invasion’ or ‘predatory incursion’ against the territory of the United States. Congress is the only US institution that can declare war and it has not in this circumstance. President Trump is presumably relying more on the second part, but it makes no sense, using any theory of constitutional interpretation, to suggest that this test has been factually met. The terms ‘invasion’ and ‘predatory incursion’ have meanings that have been established over two centuries of jurisprudence, and the only actual prior usages of the Act, in the First and Second World Wars.
- It has not been factually established by any judicial authority that the men in question were members of these gangs. President Trump has signed Executive Orders declaring the gangs terrorist organisations. Even if this is accepted, it does not prove that any of the individuals in question are actually members of the organisations in question. This is the essence of Judge Boasberg’s concern and the basis for his initial ruling: there could be no removals under the Act until there has been an ‘individualized assessment of their status’. The wider question of the constitutionality of the usage of the Act was not directly raised in Judge Boasberg’s order, although it seems inevitable that this will eventually be contested in the Federal courts.
Judge Boasberg’s order was simply ignored. The flights took place and reached El Salvador, despite the judge ordering that any flights that were already under way must be turned back. It may not be that practically easy to just turn around a plane full of prisoners, but it is presumably not beyond the powers of the US Military to return those people illegally removed once their plane has landed in El Salvador.
The Justice Department has argued that the part of the order which required the planes in transit to be returned was not binding because it was not issued in writing but only added on by Judge Boasberg in an oral comment. The Justice Department could have explained this away as a misunderstanding: they did not know about the oral comment. But this is not what their response has been. They have simply argued that an oral order is not binding. This came across in the follow up conversation on 21 March 2025 between Judge Boasberg and the Justice Department’s lead lawyer on the case, Drew Ensign:
Judge Boasberg: ‘You did tell them it was an order from me to turn the planes around … to bring back people to the United States? You understood that…Did you understand that when I said, ‘do that immediately,’ I meant it?’
Drew Ensign: ‘I understood your intent to be what you were announcing would be binding.’
The justice Department took the view that Judge Boasberg’s intent was not matched by technically filling in the order correctly (i.e in writing). Quite where this esoteric understanding of how orders from Federal judges are to be applied originates from was not explained. A simple reading of the doctrine of separation of powers would also suggest that if the Executive are uncertain what a judicial order means, they should err on the side of caution and not take any action that might prejudice any reasonable judicial interpretation of that order. In simple terms, don’t send the planes until you are absolutely certain that you are not violating a court order.
President Trumps war on judges
The Trump Administration has shown little regard for separation of powers. President Trump and members of his cabinet routinely criticise judges for decisions that they do not happen to like. President Trump seems to think this is allowed, because the judges implicitly criticise him. The thing President Trump is said to dislike the most is people disagree with him. But criticising the Executive is part of a judges job. President Trump has made the perfectly sensible political argument that he is elected and the judges are not. But this argument makes no legal sense within the US Constitution, where the unelected judges are protected during good behavior under Article 3(1). President Trump has suggested Judge Boasberg should be impeached. This is possible, but only where the judge has committed some breach of good behavior.
On March 18, 2025, Chief Justice of the US Supreme Court, John Roberts intervened to effectively rebuke President Trump. A noted conservative, Roberts pointed out that the proper response to judicial orders one does not like is appeal and further argument, not impeachment. Chief justice Roberts is currently in President Trump’s good books. This may change.
The wider problem with judges
The wider problem with judges is that they rarely make any impact in standing up to authoritarianism. German judges in the 1930’s were not replaced en masse with Nazi judges, they just became Nazi’s. Incredibly eloquent and complex opinions were delivered to the effect that Hitler could do what he wished. In any number of states since then, coup d’état have rarely been faced down by the judicial branch. The judges are not guarantors of democracy: they just go along with whatever the dictator wants. It is even possible to self-justify this: Following a coup, a judge might reason that they still really believe in democracy, and if they oppose the new leaders they will simply be removed and replaced with someone less liberal than them. But publicly at least, judges cannot have it both ways: they either stand for the democratic system that put them there or they go along with the dictatorship.
There is one tiny example of judicial backbone that may offer some hope. On 11 November 1965, the British self-governing territory of Rhodesia unilaterally declared independence (UDI) and claimed it was now a separate sovereign state. For context, the Rhodesian government that declared UDI was an apartheid, white minority government very much like that in neighbouring South Africa. The British view was that Rhodesia would get its independence when it had a non-racist government. This is eventually what happened, the state now being known as Zimbabwe.
The Rhodesian judges did not roll over as quickly and totally as others had done in similar situations but roll over they did. In Madzimbamuto v Lardner-Burke and Another [1969] the Rhodesian courts upheld the new constitutional arrangements as lawful, using a version of the doctrine of necessity: if they chose to follow the previous constitutional arrangements, where legal sovereignty over Rhodesia was invested in Westminster, the likely outcome would be chaotic. They would face conflicting statutes and judicial precedents, and it only made sense to follow the local ones. The fact that the judiciary in Rhodesia were never fully convinced the UDI was actually lawful is as far as they were willing to risk their necks. They never made any formal statement when the UDI actually occurred, merely saying that the judges would continue to follow their duties ‘according to the law’. They remained silent as to precisely which law they meant, but by 1969 it was clear it was Rhodesian law.
The Rhodesian example at least shows judges who acknowledged that they were doing the wrong thing when they were doing it. There are small examples of judges standing up to an authoritarian executive, but they generally do not, at least at the time. It is common enough for the judiciary to be enthusiastic about holding their predecessors to account, years after a transition back to democracy. But since this requires no moral courage or even a sound grasp of technical argument, we can discount it.
Reborn in the USA
No one is suggesting that the Trump Presidency is a dictatorship. Yet. The real test will be in the 2026 midterm elections. At the moment, the Republicans control Congress, the Executive and have a majority of sympathetically minded justices on the Supreme Court. It is common for the incumbent President to be punished in the midterms, by their party losing their Congressional majority. After two years in office, the honeymoon period is over and the promises made two years previously have not been delivered. Presidents campaign in poetry but govern in prose, and high inflation and a depressed stock market will hurt the Republicans. One will be more suspicious if the Republicans do well in November 2026. There are many ways for the incumbent party to load the electoral dice in their favour. The fact that the President’s best friend owns X/Twitter and that other media companies are falling over themselves to align with the President’s agenda is not a good sign.