Are the United States faced with a constitutional crisis? The response, unequivocally and categorically, is yes. But it could also get worse.
In less than 100 days, President Trump took an amazing range of unconstitutional actions to consolidate power and stifle dissent. He said the Ability to eliminate federal agencies Created by law and refuse to spend federal funds allocated by federal law. He claimed the power to dismiss anyone who works in the executive power, despite the federal laws limiting withdrawal. He tried to replace the Constitution with Eliminate citizenship from the right of birth. He has retained from money to universities without following procedures mandated by law and without legal justification. He violated the 1st amendment by revoking the visas only because of the opinions that visa holders have expressed.
These illegal acts do not only harm individuals at reception; They all hurt us. Significant dismissals in the Social Security Administration will mean that many people who are eligible for services will not obtain them, at least not in a timely manner. Cut funds for international aid will cause the death of the inhabitants of other countries Lack of medical care and food. Cups in medical, scientific and university research will have repercussions for years, with devastating consequences for the fundamental sciences, innovation and the search for remedies against diseases.
But of all the illegal executive decrees of Trump and other actions, none is more hostile to our Constitution and the Republic than his affirmation that he has the power to place human beings in a maximum security prison in Salvador without court in the United States having the power to use. The president Clearly said it could include American citizens And not only immigrants he has submitted to an extrajudicial “disappearance” so far.
To be clear, the government does not have the power to put anyone, non-citizens or citizens, in a maximum security prison in El Salvador. And he does not have the power to imprison a period of person, or to expel them, without regular procedure. Federal courts must have the power to stop illegal incarceration and ensure the return of any illegally imprisoned person so that a regular procedure can occur. Otherwise, we exist under a dictatorship, not a democracy under the rule of law.
This is why two questions currently pending before the federal courts are so important. It is not a hyperbola to say that the future of our constitutional democracy can activate these cases.
One implies the law on extraterrestrial enemies of 1798, which the administration invoked to send alleged members of a Venezuelan gang to a maximum security prison in El Salvador. It is obviously illegal. The Act respecting extraterrestrial enemies allows the government to expel men over 14 years old from an enemy nation when the United States is in a declared war or that there is an imminent military invasion. It has not been invoked only three times since its passage in the 18th century: during the War of 1812, the First World War and the Second World War. He has no request for today's situation, and even if this is the case, he does not allow incarceration in a foreign prison.
The day it started, judge James Boasberg, of the American district court of the Columbia district, held an emergency hearing and told the administration to take a break and ordered the return of expulsion flights to the United States. The government has not followed the order. This week, Boasberg said that the government was probably out of the court, that the government's refusal to stop thefts demonstrated a “deliberate contempt” of the “sufficient” court that there was a probable cause “to find the government in criminal outrage”. This follows many decisions of the Supreme Court according to which the rule of law requires that the judicial orders be respected until they be canceled or canceled on appeal. We do not know if this observation of contempt will have an effect.
The other case currently in the process of being in court implies Kilmar Abrego Garcia, a legal resident of the United States, that a government lawyer admitted to the court was apprehended by mistake and wrongly included in the expedition of supposed immigrant immigrants to the prison of El Salvador.
The Maryland Federal District Court has ordered the government to “facilitate and carry out” its return to the United States. The government refused and appealed to the Supreme Court. On April 10, the judges referred the case before the district court saying that the lower court had the power to demand that the government “facilitate” the liberation of Abrego Garcia from guard to El Salvador, but they also declared that it was not clear if the district court had the power to “consecrate” this.
The Trump administration used the ambiguity of the order of the court to justify doing nothing for Abrego Garcia and nothing to remedy his own error and his illegal actions.
Anyone who studies civic law or secondary secondary understands that Trump administration cannot be right in its treatment by Abrego Garcia or in its position that the courts cannot have their say in the matter. As judge Sonia Sotomayor wrote it in her dissent in the case involving the Venezuelans, the history of regimes without law which refuse a regular procedure is well known, “but the law system of this nation is designed to prevent, and not their increase.”
Until now, I have not appreciated how our constitutional democracy depends on the good faith of those who govern us to comply with the law, including judicial orders. Is there enough railings to protect us when an administration will not comply? Will we continue to be a nation under the rule of law?
We will see.
Erwin Chemerinsky, a contributory writer to Opinion Voices, is dean of the UC Berkeley School of Law.
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Ideas expressed in the play
- The challenge of President Trump of the Federal Court orders has increased tensions, with several judges weighing an outrage procedure against the administration for ignoring the injunctions. For example, the American district judge James Boasberg found the “probable cause” to keep the government in criminal outrage after having challenged the orders to stop the flights of expulsion to El Salvador(3)(4). Legal experts argue that this reflects a systemic erosion of checks and counterweights, because the courts find it difficult to enforce decisions against executives of the management(3)(5).
- Unprecedented executive actionsAs the attempt to put an end to the citizenship of the right of birth and to dismantle federal agencies like USAID, are considered direct violations of constitutional standards. Four federal judges have blocked the order of citizenship by right of birth of Trump, citing his conflict with the 14th amendment(4). Critics warn that these movements prioritize the ideological agendas on legal and humanitarian guarantees, risking global stability and domestic rights(4).
- The administration's refusal to comply with the judicial directives– such as not wrongly returning to people detained like Kilmar Abrego Garcia from El Salvador – has raised alarms concerning the rule of law. The courts explicitly labeled these illegal actions, but the application of the law remains hampered by executive non-compliance(3)(4)(6). Jurists' specialists like Jessica Silbey maintain that this challenge indicates a constitutional crisis, while the mechanisms of responsibility collapse(4)(5).
Different views on the subject
- Some legal experts argue that the United States is not yet in a constitutional crisisStressing that the judicial examination and monitoring of the current congress provide viable checks. For example, Harvard Law researchers categorize Trump's actions as aggressive but legally questionable disputes rather than existential threats to the Constitution(2). They note that the courts continue to hear challenges, such as blocking the changes in citizenship of the duty of birth, affirming the role of the judiciary in the resolution of the conflicts(2).
- The conservative majority of the Supreme Court Sometimes confirmed administration policies, such as authorization to retain education subsidies, arguing procedural reasons on constitutional violations. This suggests a certain judicial tolerance for the executive authority, decisions 5-4 of the court reflecting ideological divisions rather than systemic failure(6).
- The skeptics argue that the labeling of Trump's actions as a “crisis” is likely to amplify polarization. Jeannie Suk Gersen of Harvard warns that the overestimation of legal conflicts could accelerate democratic erosion, urging defenders to focus on political and legislative solutions rather than counting solely on the courts(2). Others point out that the congress retains tools to counter the executive execution, although the partisan blocking has limited their use(1)(2).
