Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Sneak Preview: An Escalating Constitutional Crisis

Date: March 18, 2025

Overview:

In this urgent extra episode, Dahlia Lithwick explores what she and her guest, Slate senior writer Mark Joseph Stern, describe as a full-blown constitutional crisis. The drama centers on the Trump administration’s open defiance of a federal court order halting mass deportations of Venezuelan migrants, the administration's invocation of an 18th-century emergency law, and the extraordinary legal and ethical questions now facing the judiciary, the administration, and the nation. The episode dissects the timeline of events, discusses legal arguments, examines the government’s rationale, and highlights the human and constitutional stakes.

Key Discussion Points and Insights

1. Laying Out the Crisis: The Trigger Events

• Timeline Recap (00:06–01:54)

  • On Saturday night, Judge James Boasberg of the DC federal district court ordered the Trump administration to immediately halt deportation flights to El Salvador carrying Venezuelan migrants.
  • The administration responded by openly refusing to comply, letting two midair planes continue to El Salvador and allowing a third to take off hours later.
  • The next day, President Trump called for Judge Boasberg's impeachment.
  • Chief Justice Roberts responded by reasserting judicial independence:

    “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” (00:46)

• Lithwick frames the episode as an “extra” due to rapidly shifting events and the “speed of law” lagging behind real-world developments.

2. A Textbook Constitutional Crisis

• The Government’s Defiance Is Not in Doubt (01:54–03:55)

  • Despite some details being classified, independent reporting confirms the administration’s actions.

  • Stern:

    “...it is confirmed that the Trump administration made the conscious decision to let those two planes that were in midair at the time of the order continue to El Salvador and to let that third plane take off...” (03:26)

  • The Trump administration is reportedly “bragging” to the press about triggering this moment of crisis:

    “If you’ve been waiting for the constitutional crisis, it has arrived now.” – Mark Joseph Stern (04:53)

3. Legal Arguments & Government Rationale

• Exploiting Obscure Laws (00:54–05:09)
  • Administration invoked the Alien Enemies Act of 1798, typically a wartime measure.
  • The ACLU promptly sued; Judge Boasberg declared the administration couldn't bypass due process under this law.
  • Government lawyers argue the president had “a constitutional right to defy the court, or at least to attempt to carve extremely unconvincing loopholes...” (04:14)
    • Stern’s assessment: These loopholes are not credible or sufficient under the law.

4. Human Toll: Deportees with No Evidence

• No Proof of Guilt (05:09–06:53)

  • Administration named hundreds as alleged members of the “Trende Aragua” gang, but there’s no evidence or U.S. criminal records.
  • Many deportees were law-abiding asylum-seekers with lawful status.
  • Lithwick underscores the trauma faced by families:

    “Families are having to beg the media and the public to help them figure out why their relative was shoved onto an airplane and sent to a horrific prison in El Salvador when they had done absolutely nothing wrong.” (06:32)

• Photo Evidence & Public Spectacle (06:53–07:33)

  • Deportations were hardly “secret”—migrants were paraded in prison garb for cameras in El Salvador.
  • Lithwick notes the “credulity-defying” claims by the government about secrecy:

    “There was a photo op with still cameras at the other end in El Salvador... So to be clear, the claims that this is all super top secret when there's literally a presser happening at the other end also kind of defies credulity.” (06:53)

5. The Chilling Government Logic: Preemptive Punishment

• Official Declaration Justifying Actions (07:33–09:10)

  • Mark reads a six-page ICE declaration filed in court by Robert Al Serna, effectively arguing that:

    “...the lack of a criminal record does not indicate they pose a limited threat. In fact, based on their association with Trend, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists. With regard to whom we lack a complete profile.” (07:52)

  • Stern’s reaction:

    “That is just straight up dystopian. I mean, it's right out of the Minority Report movie... they're saying, like our Precogs think that these people will commit crimes in the future, so we have to arrest and imprison them before they do.” (08:30)

  • This approach, they argue, upends core American legal principles of due process and ‘innocent until proven guilty,’ granting the government “totally unreviewable and sweeping power to just persecute any immigrant they want based on how they look, who they are, who they are suspected to be.” (08:57)

Notable Quotes & Memorable Moments

• Roberts Defends Judicial Independence (00:46):

  “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” – Chief Justice John Roberts

• Moment of Crisis (04:53):

  “If you’ve been waiting for the constitutional crisis, it has arrived now.” – Mark Joseph Stern

• The Dystopian Turn (08:30):

  “That is just straight up dystopian... they're saying...our Precogs think that these people will commit crimes in the future, so we have to arrest and imprison them before they do.” – Mark Joseph Stern

• The Real Human Cost (06:32):

  “Families are having to beg the media and the public to help them figure out why their relative was shoved onto an airplane and sent to a horrific prison in El Salvador when they had done absolutely nothing wrong.” – Dahlia Lithwick

Important Segment Timestamps

• 00:06: Episode opening, Dahlia sets up the timeline and context for the crisis.
• 00:46: Chief Justice Roberts' statement on judicial independence and impeachment.
• 01:54: Transition to timeline breakdown by Mark Joseph Stern.
• 03:55: Legal and factual clarity on government defiance.
• 05:09: Discussion shifts to the absence of proof and the plight of deportees’ families.
• 06:53: Exposing the government’s contradictory claims of secrecy vs. public spectacle.
• 07:33: Reading and reaction to the “dystopian” ICE declaration.
• 09:10: Conclusion and Slate Plus sign-off.

Conclusion

This episode of Amicus delivers a clear-eyed, detailed, and urgent account of an unfolding constitutional crisis: the open executive defiance of a federal court order, the invocation of archaic powers, and the administration's public embrace of preventive punishment—all against the backdrop of families thrown into confusion and fear, and judges defending the very existence of judicial review. Lithwick and Stern’s analysis is direct, unsparing, and suffused with concern for both the legal principles at stake and the people caught in the machinery of power.