← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Sneak Preview: An Escalating Constitutional Crisis
00:09:49
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- [00:07]
Dahlia Lithwick
Hi, I'm Dahlia Lithwick. Welcome back to amicus. This is Slate's podcast about the courts, the law, and the U.S. supreme Court. It is Tuesday, March 18, on the 4th day of a, I think, genuine constitutional crisis that began to unfold midair on Saturday night when Judge James Boasberg on the federal District Court in D.C. ordered the Trump administration turnaround deportation flights to El Salvador carrying Venezuelan migrants, and the administration actively refused to comply in open defiance of a court order. By Tuesday morning, the president was calling for Judge Boasberg to be impeached. Chief Justice Roberts responded around noon on Tuesday, writing, quote, 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, end quote. So we are coming to you with this extra episode of Amicus because while events are moving quickly, the courts are moving at, well, the speed of law, which means there's an awful lot to unpack, a timeline to try to pin down, and some big questions that will not wait till Saturday. In what definitely does not feel like, quote, the normal appellate review process, the government had a deadline of noon today, Tuesday to answer a whole bunch of questions from Judge Boasberg. Joining me now to figure out whether those questions were answered and what it all means is Slate senior writer Mark Joseph Stern, quarterback on Team Jurisprudence here at Slate. Hi, Mark.
- [01:51]
Mark Joseph Stern
Hi, Dahlia. And happy Constitutional Crisis Day to you.
- [01:55]
Dahlia Lithwick
Happy Constitutional Crisis Week, possibly month, maybe year. Let's see. Hey, I think we should start with just a timeline because it's important to lay out the facts that prove, I think, fairly clearly that we are now in the midst of a textbook constitutional crisis. Let's be clear, maybe before we even do that, the Justice Department's position continues to be that even parts of the timeline are classified. On Saturday, it seems that the Trump administration began deporting Venezuelan migrants under the Alien enemies Act of 1798, accusing hundreds, without showing any evidence of belonging to the Trende Aragua gang. The ACLU promptly sued them in Federal Court at 6:48pm still, on Saturday, Federal District Judge Boasberg held an emergency hearing at which he determined that the Trump administration could not go around using the Alien Enemies Act. We've talked about it before on the show. It's an obscure wartime law from the 18th century, and he couldn't use it to deport people with no hearing. He then ordered deportations to be halted. In a verbal ruling from the bench, he said, and I quote, you shall inform your clients of this immediately and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. But according to Axios and other reporting, the Trump administration just chose to defy that order. Instead, it allowed two planes that were already in flight to continue their journey to El Salvador. And it appears to have allowed a third plane to take off nearly two hours after Judge Boasberg's order from the United States and travel to El Salvador, where it then unloaded migrants bound for prison. Mark, none of the facts that I laid out or the timeline that I laid out is seriously contested. Right.
- [03:55]
Mark Joseph Stern
With the caveat that, as you said, the government claims much of this information is classified. No, it's not seriously contested. And this information about the flights is publicly available the New York Times and Just Security, among other outlets, have laid out. We aren't really here to debate the facts. 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 from the United States and go to El Salvador. Those actions, I think, quite clearly disobeyed Boberg's decision. Now, the Justice Department has a bunch of legal arguments about why the President had a constitutional right to defy the court, or at least to attempt to carve extremely unconvincing loopholes into the court's orders to get around it. But I think the indisputable reality is that Trump and his administration did defy the courts. They've been giving quotes to outlets like Axios, more or less bragging that they decided this was the crisis they would force by disobeying a court. I guess I would just say, like all sides agree, if you've been waiting for the constitutional crisis, it has arrived now.
- [05:09]
Dahlia Lithwick
And we're going to parse those legal arguments in a minute. But I just want to do one other factual point that we should clarify. There is no proof that all of these migrants, several hundred of them, actually belong to any Venezuelan gang. Correct. Much less that they committed crimes in the United States. I mean, there is no sense that these people have done the thing that the administration says they have done.
- [05:39]
Mark Joseph Stern
That is correct. The administration has simply accused them, without evidence, of belonging to this gang, pushed them onto planes and sent them to a horrific prison in El Salvador with. With inhumane conditions. And what's happening now is that their families are coming forward to the media cuz they have nowhere else to turn. Saying My husband, my brother, my cousin was abducted by the US Government. He was a law abiding resident of this country. You know, these individual, many of them had a legal right to live in the United States. They were claiming asylum, they were not breaking the law. And yet they were taken in by ICE agents and deported without any explanation to the families. And so it's a really chilling situation because to me it feels like after a natural disaster, like an earthquake or an airplane crash or, or even like a mass shooting where you see these families come forward saying, does anyone have information about my missing relative? That's what's happening now. Families are having to beg the media and the public to help 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.
- [06:53]
Dahlia Lithwick
Just to be clear on this question of whether this was a top secret enterprise, let's be clear that there was a photo op with still cameras at the other end. In El Salvador, we are seeing folks with shaved heads in prison garbage, some of whom are now being identified, as you say, by wives and sisters who say they were lawfully in the country. Some of them were showing up to hearings, they were grabbed on the basis of things like tattoos. 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.
- [07:33]
Mark Joseph Stern
Yes. And I just want to add on this topic, this extraordinarily chilling six page declaration that was filed by Robert Al Serna, who the acting Field Office Director of Enforcement and Removal Operations at ice. I just want to quote this paragraph. This was submitted by the government in support of its position. CERNA said, quote, while it is true that many of the Trend Aragua members removed under the Alien Enemies act do not have criminal records in the United States. That is because they have only been in the United States for a short period of time. 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, Dalia, that is just straight up dystopian. I mean, it's right out of the Minority Report movie, right? I think 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. And in response to objections that they haven't committed crimes. The government's saying that makes them even more suspicious. They haven't committed crimes yet. That makes it even clearer that they will in the future. I mean, I cannot fathom that we have government lawyers signing on to this because it turns the very principles of American law of due process of innocence until proved guilty on its head and I think gives the government, as we'll soon discuss, 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.
- [09:10]
Dahlia Lithwick
Or what they are suspected of someday doing that they cannot possibly disprove because they don't know what it is because it hasn't happened. Slate plus members can access my conversation with Mark Joseph Stern in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. We will be back with your regularly scheduled Amicus episode on Saturday morning and on. Until then, take good care.