Op-Ed: Trump’s Deportation Defiance Is a Constitutional Crisis in the Making

On April 4, Jennifer Vasquez Sura stood before reporters in Maryland holding a sign with a photo of her husband, Kilmar Abrego García, smiling with their young son. The caption read: Wrongfully Held in Trump’s Overseas ICE Jail. Her husband — a lawful U.S. resident — had been deported in error to a megaprison in El Salvador, swept up in the Trump administration’s mass deportation campaign targeting alleged gang members under the Alien Enemies Act of 1798.

What followed should send a chill down the spine of anyone who believes in the rule of law: the federal government acknowledged its mistake but refused to bring him back.

The American Civil Liberties Union has asked the Supreme Court to step in once again — arguing that Trump officials are not complying with the Court’s April 7 order, which explicitly stated that detainees must be given real notice and the opportunity to challenge their deportation in court before being shipped to a foreign prison. 

The administration, according to the ACLU, issued vague, English-only notices at the last minute, offering no clear way for Spanish-speaking detainees to seek judicial review. Some were reportedly placed on buses en route to the airport — bound for a facility in El Salvador where their attorneys say they face torture, indefinite detention, and even death.

Legal experts and the courts have responded with increasing alarm. Judge James Boasberg of the U.S. District Court for the District of Columbia held an emergency hearing and ordered the deportation flights halted and reversed. The administration ignored him. Boasberg has since said the government’s behavior showed “willful disregard” for his authority and that there is probable cause to find the Government in criminal contempt.

Let that sink in: federal officials may be criminally liable for defying a federal judge.

The stakes are enormous — and constitutional scholar Erwin Chemerinsky has made that plain. “Is the U.S. facing a constitutional crisis? The answer, unequivocally and emphatically, is yes,” he wrote in a recent Los Angeles Times column. Chemerinsky, dean of UC Berkeley School of Law, lays out the pattern with clarity and force: Trump has claimed powers that override laws, dismantle federal agencies, fire protected employees, and silence dissent. But nothing, Chemerinsky argues, “is more inimical to our Constitution and the republic than its claim that it has the power to put human beings in a maximum-security prison in El Salvador with no court in the United States having the power to provide recourse.”

Indeed, Trump’s use of the Alien Enemies Act — an obscure and nearly dormant statute passed in 1798 — is a gross distortion of the law. The statute was designed to allow the removal of enemy nationals during a declared war. It was used during the War of 1812, World War I, and World War II. Never before has it been used to detain and deport migrants in peacetime — let alone disappear them to foreign prisons with no due process.

And it doesn’t end with non-citizens. 

As Chemerinsky warns, “The president has clearly said this could include U.S. citizens.” The logic of extrajudicial deportation — that the president can declare someone a threat and bypass the courts — is the logic of authoritarianism.

The Supreme Court, to its credit, has intervened — issuing a late-night emergency stay to prevent more deportations. Justice Sonia Sotomayor, in a forceful dissent, warned that the administration’s theory would “eviscerate the core guarantee of due process.” And yet, the administration has treated these rulings as suggestions rather than mandates. They have not brought back Kilmar Abrego García. They have not provided meaningful notice to other detainees. They have, in Chemerinsky’s words, “used the ambiguity in the court’s order to justify doing nothing.”

This is the crisis: not just the policies, but the open defiance of the judiciary. The legal system depends — fundamentally — on good faith. When court orders are ignored, the entire edifice of democratic accountability begins to crumble.

The image of Jennifer Vasquez Sura holding her son’s picture and pleading for her husband’s return is a human face on what some might otherwise dismiss as legal abstractions. This is not an arcane debate about presidential authority. It is about whether we are still a country where families have rights, where mistakes are corrected, and where no one — not even a president — is above the law.

The Supreme Court must go further. It must reaffirm, unequivocally, that the government cannot imprison people without judicial oversight. That due process means what it says. That “facilitate and effectuate” is not an invitation for delay, but a command to act. Congress must also investigate and, if necessary, act to curtail the use of wartime authorities as a blanket justification for human rights violations.

Because if the courts cannot enforce their own rulings — and if the executive can ignore judicial authority with impunity — then we are no longer governed by law.

As Chemerinsky writes, “Are there sufficient guardrails to protect us when an administration will not comply? Will we continue to be a nation under the rule of law? We shall see.”

We’d better hope the answer is yes. Because if it isn’t, the consequences will outlast any administration — and any court order.

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