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The Week Ahead
March 16, 2025
It’s going to be an eventful week. That’s already clear. Chief among the issues is whether this is the week we reach the tipping point where the administration flagrantly ignores a federal court’s order, and we begin to see the ensuing constitutional crisis, which would be full blown at that point, play out. It’s not a prospect any of us relish focusing on, but nothing gets better just because you look the other way.
Every federal prosecutor, really every lawyer, understands this one basic rule: If a court orders you to do something, you do it. If you don’t like the ruling, you can appeal it at the appropriate time, but unless and until that order is reversed, like it or not, you must obey it.
Democracy flows from this basic underpinning of the rule of law. It guarantees certainty and clarity so that people can contract, invest, feel safe, trust government—because everyone must follow the same laws. If Trump busts that covenant with the people, then our government is no longer a government by, for, and of the people. It is a government of Donald Trump, and it operates at his whim.
Here’s what happened:
The ACLU and Democracy Forward sued the government over its efforts to deport people alleged to be Venezuelan Tren de Aragua gang members using the Alien Enemies Act. It asked the Judge to enjoin the deportations. The Alien Enemies Act that the government claimed it was operating under is the same law used to put people of Japanese ancestry in camps during World War II. The law, passed in 1798, gives a president, once he issues a public proclamation, wartime authority to arrest and deport citizens of a country engaged in a “declared war” or “invasion or predatory incursion” against the United States.
Federal Judge James Boasberg in the District of Columbia issued a temporary restraining order to stop deportations under the law while he considered the issues. He ordered planes that were up in the air at the time of his decision to return to the United States. There is some suggestion the government didn’t do that, but there are some technical issues involving what happened and when, like the location and timing of flights, some differences between the Judge’s oral directions in court and the minute order he entered in the record, and when the order became effective. The legal position the government is in isn’t entirely clear yet. It’s *possible* that they didn’t technically violate an order that was in effect.
But, whatever the outcome of the legal argument, the government skipped over the spirit of the ruling and, as lawyers know (see above), you don’t slice that close to violating a court order. You comply with it and then you appeal if you disagree with it. If there’s any doubt, you err on the side of caution.
The government didn’t do that and according to reporting in Axios, there is some indication that they are spoiling for a fight on this issue. Axios also reports, “White House Deputy Chief of Staff Stephen Miller ‘orchestrated’ the process in the West Wing in tandem with Homeland Security Secretary Kristy Noem. Few outside their teams knew what was happening.” After the plaintiffs learned Saturday afternoon that two ICE flights were flying from Texas to El Salvador, they went to court to ask the Judge for the emergency order. El Salvador, which had agreed to accept Venezuelan gang members deported from the U.S in a for-pay prison situation, is not exactly known as a bastion of human rights. There are good reasons to doubt the legality of the scheme.
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During the hearing, Judge Boasberg said any flights in progress should return to the United States. “This is something that you need to make sure is complied with immediately,” he told the Justice Department, according to The Washington Post.
The government claimed it did not flout the order, but the reasoning is circular. If it is challenging the order’s legality, there is only one correct way to do it, with an appeal.
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And their case is not improved by the fact that White House communications director Steven Cheung retweeted Salvadoran President Nayib Bukele’s social media post that said “Oopsie…Too late,” and claimed the detainees had been transferred to a “Terrorism Confinement Center.”
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In the coming days, we will see more about the location of the planes when the order was issued and whether that impacted, in any way, the government’s obligation to follow the court order. But ultimately this is headed straight to the constitutionally dangerous place we’ve know we were headed since Trump first began to take unprecedented steps towards consolidating power in his hand: to the Supreme Court, where Trump will be hoping for a decision that supplants the balance of power among our three branches of government with a ruling endorsing the “unitary executive” theory that puts the presidency atop the system. Simply put, Trump wants a ruling that says he can do these deportations regardless of other legal issues, because he is the president, and the president has the power to do whatever he deems necessary under Article II of the Constitution.
The unitary executive theory is really just a way to cloak the morphing of a democratically elected president into a dictator with the appearance of legality. If presidents can do whatever they want, including putting people on a plane and sending them to prisons in a foreign country with no due process whatsoever, then really, who are we? The Supreme Court started Trump down this path with the criminal immunity ruling in his favor. Whether they will pump the brakes now, before it’s entirely too late, remains to be seen.
Judge Boasberg is no stranger to issues involving national security and immigration; he has served on some of the specialty courts in the federal system, including the Alien Terrorist Removal Court and the Foreign Intelligence Surveillance Court. He was a prosecutor in the U.S. Attorney’s office in the District of Columbia before he became a judge. He understands the duty the government has here. All that to say, this is a Judge who understands how the system works and how it’s supposed to work. That’s important as the government prepares to push the limits of what can be deemed compliance with the court’s order to its precise literal terms, not what it was clearly contemplated to include.
We are inevitably headed, whether it’s in this case or another, to a confrontation between a president who has rejected the rule of law and a judge sworn to enforce it. We are in an exceedingly dangerous moment for democracy.
In the early weeks of the Trump administration, rather than openly defy court orders, as there was some suggestion they were considering doing on social media, the government turned to the normal route—appealing decisions against them in cases involving DOGE, federal spending, and birthright citizenship. That happened after several Senators took what in normal times would have been the unnecessary step of advocating for compliance with the rule of law. Now, we’re at the moment again, as it has always been clear we would be at some point. So far, there has been no outcry on the right that we must remain a rule of law country.
We’ll watch what happens in this case, along with a case filed in Boston, where the government allegedly deported a surgeon who is a kidney transplant specialist and Brown University professor to her native Lebanon. The Judge in that case, Leo Sorokin, ordered the government to give the court 48 hours notice before deporting her. This evening, Vice President JD Vance tweeted “There were violent criminals and rapists in our country. Democrats fought to keep them there. President Trump deported them,” referring to the Venezuelans. But the Yale-educated Vice President misses an important point, which is that we protect everyone’s rights in this country, not just people we like. And it couldn’t be clearer why. It’s a steep slippery slope from the alleged gang members (no court has confirmed that designation) to a noted surgeon and then onto others. If the law doesn’t apply, then the government is free to violate our rights at will.
Sunday morning, Judge Sorokin filed an order requiring the government to respond to what he called “serious allegations” they had violated his order in advance of a Monday hearing. Tomorrow, the week gets off to a very serious start.
I had planned to write to you tonight about a number of new developments on multiple fronts, all important. But these deportation cases, which cropped up Saturday, are one of the most significant developments so far in Trump 2.0, and I wanted to give you a good level of detail. So I’ll hold the rest for tomorrow or later in the week.
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and friend of this newsletter, put it like this: “The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless. It may be the administration's most extreme measure yet, and that is saying a lot.”
This is a week to stay engaged. There are lots of details to untangle, lots of hot takes whose validity will be explored in the next 24 hours. But wherever this ends up with the courts, it’s clear that Trump intends to act like a dictator, not like a president.
“The United States is not at war, nor has it been invaded. The president’s anticipated invocation of wartime authority — which is not needed to conduct lawful immigration enforcement operations — is the latest step in an accelerating authoritarian playbook,” said Skye Perryman, president and CEO of Democracy Forward. “From improperly apprehending American citizens, to violating the ability of communities to peacefully worship, to now improperly trying to invoke a law that is responsible for some of our nation’s most shameless actions, this administration’s immigration agenda is as lawless as it is harmful.”
“There is no foreign military action to justify President Trump’s intended invocation of this act, making his actions not only unlawful but an outright assault on fundamental rights. This is yet another dangerous overreach by the administration, designed to support an unchecked mass deportation program, all while bypassing the necessary judicial review,” said Arthur Spitzer, senior counsel at the ACLU of the District of Columbia.
We’re in this together,
Joyce
