Donald Trump has plunged into the political battle he always wanted by challenging the power of the judicial branch of the United States government.
Trump now appears locked in an arm-wrestle with the legal system over the basis of his mass deportation plan. But the key question is whether his administration recognises the arm-wrestle is legitimate at all, with experts warning of a potential constitutional crisis if the President implements his political agenda in defiance of the courts.
This scenario appears to be edging closer - the latest flashpoint being the administration’s use of a rarely used 1798 law, known as the Alien Enemies Act, to deport Venezuelan gang members.
Only invoked during conflicts – in 1812, World War I and World War II – it has never previously been used as the legal foundation to deport dangerous non-citizens during peacetime.
On Saturday, the top federal judge in Washington told the administration that any in-progress international flights deporting non-citizens under the 1798 law needed to be “returned to the United States’’.
Yet, this did not happen. Instead, 261 non citizens were deported by plane to El Salvador, swiftly raising questions about whether the administration had defied the court.
The administration says it did not.
But its key defence was to say the District Court lacked jurisdiction and that a 14-day temporary ban on deportations under the law was an illegitimate infringement on presidential power.
Senior adviser to the President, Stephen Miller, said that a district court had “no ability to in any way restrain the President’s authority under the Alien Enemies Act.” The administration’s “Border Tsar” Tom Homan also told Fox News that “I don’t care what the judges think. I don’t care.”
It may ultimately fall to the US Supreme Court to determine the merits of the administration’s application of the Alien Enemies Act to transnational criminals and its claim that a district court has no jurisdiction to block foreign policy and immigration actions taken by the US President.
But this is a fight relished by the Trump administration for practical and political reasons.
In practical terms it wants to expand executive power at the expense of the judiciary and, in political terms, it can blame the courts for any failure or delays in the implementation of its political agenda.
Patrick Eddington, a senior fellow at the classical liberal Cato Institute in Washington, warned the expansion of executive power came with major risks and argued the nation was witnessing an “assault on the entire constitutional order in America”.
He said that, when the founding fathers wrote the US constitution, they “believed that institutional rivalry between the three branches would be an adequate check on potential executive branch overreach”.
George Washington’s warning in his farewell address about the “baneful effects of the spirit of party” had gone unheeded. “Over the course of the last 250 years that ‘baneful spirit of party’ has now effectively subverted institutional safeguards,” Eddington said.
He suggested the impeachment and removal of a president for unconstitutional acts would now prove to be “simply impossible” if they were “supported in the House and Senate GOP via a cult of personality’’.
“And because all federal law enforcement agencies are under the control of the executive, it’s not at all clear that even officials below Trump who carried out his unlawful orders would face arrest for their acts.”
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