The Trump Administration Is Close to Sparking a Legit Five-Alarm Constitutional Crisis. Here’s Why

Summary

Bulwark Takes: The Trump Administration Is Close to Sparking a Legit Five-Alarm Constitutional Crisis. Here’s Why

Release Date: March 18, 2025
Host: The Bulwark
Guests: Ryan Goodman (Just Security)

---

Introduction

In this episode of Bulwark Takes, Sam Stein, managing editor of The Bulwark, is joined by Ryan Goodman from Just Security to discuss the escalating tensions between the Trump administration and the judiciary. The conversation revolves around the administration's controversial use of the Aliens Enemies Act to deport suspected Venezuelan gang members, potentially igniting a constitutional crisis of unprecedented scale.

---

Background: The Aliens Enemies Act and Current Actions

Sam Stein opens the discussion by highlighting the immediate context:

"We are nearing a constitutional crisis. We've talked about this a couple times, but this one feels a little bit more immediate than the last ones."
— Sam Stein [00:00]

The Aliens Enemies Act, a century-old statute designed for wartime situations against adversary foreign governments, is at the center of the controversy. The Trump administration has invoked this act to deport suspected Venezuelan gang members to El Salvador, a move that has only been attempted four times in U.S. history.

---

The Court Hearing: DOJ's Defense and Judicial Pushback

Ryan Goodman delves into the details of the recent court hearing:

"The DOJ attorneys are asserting that they complied with the orders and they've got a convoluted theory."
— Ryan Goodman [01:12]

During the hearing, the Department of Justice (DOJ) argued that they were acting within their legal authority by utilizing the Aliens Enemies Act. However, their justification appeared muddled, especially when addressing a verbal restraining order issued by Judge Boasberg to halt the deportations.

Judge Boasberg's demeanor was notably stern and impatient:

"He was quite impatient and kind of kept his temper, ... an affront to the judicial system."
— Ryan Goodman [05:40]

The DOJ's ambiguous stance—shifting from verbal to written orders and later invoking Article II powers to justify actions in international airspace—left the court questioning the legitimacy of their actions.

---

Legal Analysis: Article II Powers vs. The Aliens Enemies Act

The crux of the legal debate centers on whether the administration's invocation of Article II inherent presidential powers supersedes the restrictions of the Aliens Enemies Act. Goodman explains:

"If they're in midair and they are in international airspace, then there is a separate new authority that kicks in."
— Ryan Goodman [03:32]

This argument suggests that actions taken in international airspace are beyond the jurisdiction of the Act, allowing the President to exercise broader powers. However, this interpretation raises significant constitutional questions about executive overreach and the separation of powers.

---

Administration's Strategy: Undermining Judicial Authority

The administration appears to be pursuing a strategy to delegitimize the judiciary's role in this matter. Ray Goodman observes:

"I think they're trying to seriously delegitimize the courts."
— Ryan Goodman [09:30]

Efforts include framing Judge Boasberg's decisions as overreaches, despite his reputation as a respected jurist appointed by Obama. The DOJ's attempts to obscure their legal justifications and the vague invocation of national security concerns further complicate the administration's position.

---

Watchpoints: The Third Flight and Its Implications

A pivotal moment in the discussion is the mention of a third flight:

"There's a third plane that takes off from the United States from Texas after Judge Boasberg's written order."
— Ryan Goodman [12:56]

The legality and composition of this flight remain uncertain. If it comprises the same individuals as the initial deportations, it could represent a blatant disregard for judicial orders, intensifying the constitutional crisis. Conversely, if handled through standard immigration procedures, it might mitigate some concerns but still leave overarching issues unresolved.

---

Supreme Court Implications: Potential Escalation

The conversation shifts to the role of the Supreme Court in this unfolding crisis:

"I think this case might be one of them. That's on a speed track."
— Ryan Goodman [16:54]

Goodman expresses concern over the Court's composition, noting that Justices Alito, Thomas, and Gorsuch are firmly positioned to support the administration's stance. This alignment could hinder impartial adjudication, further deepening the constitutional impasse.

---

Conclusion: A Nation on Edge

As the episode wraps up, Sam Stein and Ryan Goodman acknowledge the gravity of the situation:

"We'll see what happens with the third flight. We'll check back with you."
— Sam Stein [17:25]

The administration's actions, coupled with judicial pushback and potential Supreme Court involvement, underscore a brewing constitutional crisis that could redefine the balance of power in the United States.

---

Key Takeaways

• Aliens Enemies Act Misuse: The Trump administration's invocation of this outdated wartime statute to deport Venezuelan gang members raises serious legal and constitutional concerns.

• Judicial Pushback: Judge Boasberg's firm stance against the administration's actions highlights the judiciary's role in checking executive overreach.

• Article II Debate: The administration's reliance on inherent presidential powers to justify actions in international airspace is contentious and may lack solid legal grounding.

• Supreme Court Dynamics: With a conservative-leaning Court, the potential for upholding the administration's actions looms large, exacerbating fears of a constitutional crisis.

• Future Developments: The legality of subsequent deportation flights and their handling will be critical in determining the trajectory of this constitutional showdown.

---

This episode of Bulwark Takes illuminates the precarious state of U.S. constitutional governance, emphasizing the delicate interplay between executive authority and judicial oversight. As events unfold, the nation watches closely, wary of the implications for democracy and the rule of law.

Transcript

[Sam Stein]

Hey, guys, it's me, Sam Stein, managing editor, Bulwark. I'm joined by Ryan Goodman, as always, of Just Security. We are here to talk about. I mean, how do you want to even phrase it? We are nearing a constitutional crisis. We've talked about this a couple times, but this one feels a little bit more immediate than. Than the last ones. As always, do subscribe to the feed so we can, you know, get content like this. Ryan, we're speaking here. It's Monday night, 9:45. There's just been a hearing over the administration's use of the Aliens Enemies Act. You know, centuries old authority for wartime that's only been used, I think, four times in our nation's history. What prompted this is that they were told to stop deportations of suspected ven. Venezuelan gang members to El Salvador. They didn't. They claim they're in International Aerospace and that the judge's restraining order was verbal before it was written and they didn't have time. Yada, yada, yada. They're claiming they haven't violated law or the court order, I should say, but there's some ambiguity there. What did we learn tonight?

[Ryan Goodman]

Sure. So tonight we learned, at least in the courtroom, the DOJ attorneys are asserting that they complied with the order orders and they've got a convoluted theory. So we also learned my best understanding of the convoluted theory as to why they were not in violation of the order. And the most difficult challenge they have is that there's a verbal order that the judge gave on Saturday night around 6:45pm which is turn back the planes.

[Sam Stein]

Right.

[Ryan Goodman]

And then he follows it up about 45 minutes later with a written order that says nobody shall be removed under the proclamation of the in an enemies Act. Their problem is they've got these ideas about why the written order said something or the other. But a real problem is why did they not turn back the planes after the verbal order explanation. Here it is. Okay.

[Sam Stein]

We laugh because we can't do anything else, but go ahead.

[Ryan Goodman]

Yeah. So I'm going to channel the best explanation. I think this person may be slightly better than they've put it. But their point is there are two planes that are up in the air. When the judge's order comes through the verbal order, turn the planes around. Right. And it was made very clear in the hearing that night that the order only pertained to one legal authority to get people out of the United States and into El Salvador, and that's the Alien Enemies Act.

[Sam Stein]

Okay.

[Ryan Goodman]

And it's Explicitly said by the Justice Department lawyer at the very end of the hearing, judge, can you just make clear if we have another basis for removing people, we can still do that? Right. And the judge turns, the ACLU attorney, they say, right. Judge turns back and says, that's correct. My order just says, you can't remove them under the Alien Enemies act because it doesn't apply. You don't, you don't have this authority. So here's the argument. If they're in midair and they are in international airspace, then there is a separate new authority that kicks in and that. Separate authority. Yeah.

[Sam Stein]

So once, once, once you pass a line, a geographic line or your international airspace, suddenly a new law, you're under the jurisdiction of a new law, operating with that as a legal basis.

[Ryan Goodman]

It's changed.

[Sam Stein]

Mid. Mid.

[Ryan Goodman]

Mid.

[Sam Stein]

Mid Deportation.

[Ryan Goodman]

Yeah. And the new authority is. And this is the other part that's just extraordinarily aggressive, that it's the just inherent Article 2 Powers of the President, that the president has inherent powers under Article 2 if it's operating abroad, so not on US territory dealing with, they say terrorists, but one would have to say suspected or alleged to be, and transferring them through diplomatic channels to another country. If that's the situation, then the President has inherent Article 2 power to do so. So now they're in midair. And that's why their distinction is, see that they were in international airspace. If they were still in US territory, the Article 2 authority doesn't kick in. So the rest of the trip is because they had an alternative legal authority to do so. That's, that's the one piece as to why after the verbal.

[Sam Stein]

And they don't came back the flights, and they don't have to produce any sort of contemporaneous evidence that suddenly, once they cross into international aerospace, a lawyer said, ah, we're no longer operating under the Alien Enemies act, we're now operating under Article. Just assume that that's what they were doing.

[Ryan Goodman]

I would love for the judge to ask them that very question. I would love for him to say, when was the determination made by the lawyers?

[Sam Stein]

I mean, obviously, as you and I, if we were taking true serum, it was a post hoc determination. They, they were called as the court and they said, oh, we need a justification for why we didn't turn the planes around. Let's go with the Article 2 authority. But wouldn't the judge say, no, I need to, I need to know. I need to see when your determination was actually made.

[Ryan Goodman]

Yeah. So that if it went down, that Road. It's strange to me that judges often don't ask that question, like, did you have the authority beforehand, or is this an authority that the lawyers came up afterwards? But I completely agree with you, and it's consistent with the Axios reporting, which is that they just said, damn the. Damn the judges. We're gonna. The judge. We're just gonna go ahead and continue on to take these people in El Salvador.

[Sam Stein]

What was judges. I want to make sure I'm pronouncing his name correctly. Borsberg.

[Ryan Goodman]

Boasberg.

[Sam Stein]

Okay. What was Boasberg's temperament as they offered this rationalization?

[Ryan Goodman]

So he was. It seemed quite impatient and kind of kept. Kept his temper, was at one point a little bit more outspoken. But he also said, like, it's. I mean, all the things that they were saying to him were things that are generally never said in a courtroom.

[Sam Stein]

Right.

[Ryan Goodman]

So it really was an affront to the judicial system because the other pieces that they were saying is, for example, he said, okay, what was your legal justification for, like, the third flight that left after my written order?

[Sam Stein]

Right.

[Ryan Goodman]

And they said, we can't tell you that.

[Sam Stein]

Citing what?

[Ryan Goodman]

Exactly. And he says, citing what? He says, citing what? Like, what's your legal authority? And he says, I can't tell you that. And he said. And there was other questions like that. He said, you came into the courtroom today, and you can't even tell me why you can't tell me.

[Sam Stein]

But are they just saying, well, it's the national security interests and we just can't do it?

[Ryan Goodman]

Yeah. Yeah. So actually, at one point, the DOJ lawyer says national security, but that's like. It's not a reason. Like, are you invoking the state's secrets doctrine or so they didn't.

[Sam Stein]

They didn't do that. They just were vague, Totally vague, in.

[Ryan Goodman]

Which he actually said, come back tomorrow by noon and tell me what the authority is as to why. Because also the lawyer. I think the lawyering on the Justice Department's side is so bad. It's a question of, like, malevolence versus incompetence.

[Sam Stein]

Right.

[Ryan Goodman]

Because.

[Sam Stein]

Yeah, well, they fired half the people or demoted them, so.

[Ryan Goodman]

Yeah, exactly. Yeah.

[Sam Stein]

Let's step back for a second, talk a little bit about the initial decision to invoke the Aliens Enemies act and the significance of that.

[Ryan Goodman]

Yeah. So I think this is really important because that really goes to the merits of what they're doing and the kinds of power that they're assuming, especially because the White House, for lack of a better word, propaganda machinery is. Is Trying to say part of the reason that the White House and the government's acting this way is because of this wayward lawless judge. That is the furthest from the truth. That is an upside down world. Judge Boberg is the chief judge. He's highly respected, highly respected. And what he is doing is straight down the middle. The extraordinary thing is what they did with the Alien Enemies Act. The Alien enemies Act is 1789 statute that is principally for wartime situation and only against an adversary that is a foreign government. And lo and behold, on Friday night, the president secretly signs the proclamation and then publicizes it on Saturday. And the proclamation says things like that the Venezuelan gang is in fact a foreign government. Like things like that. It's just. Is that absurd? And their court filings also say that as well. They're like, oh, the second theory you have is the Venezuelan gang is itself a foreign government or it's acting at the direction of the Maduro regime. And that they're. Yeah. And that the regime is like a hybrid criminal gang government. And that's an absurdity. There's also no war or invasion.

[Sam Stein]

Well, they've been calling it an invasion, right? I mean, they're using all this terminology to dress it up as a war. We've been invaded. These are gang members, you know, so on, so forth. They spent today, they being the administration, depending on your vantage point, either defying or downplaying the judge's decision, mocking the idea that he would have jurisdiction or have any power to determine administration policy in this domain. And also, weirdly, in a way, kind of making sure to couch that by saying, we, of course, are not defying a court order. How do you read? And then I should add one other thing. As I read it in the afternoon's hearing, they tried to get the judge removed from the case or petitioned to get him thrown off the case. How do you read the administration's actions today?

[Ryan Goodman]

Okay. I think they're trying to seriously delegitimize the courts. That's what they're trying to do. And the judge, like I said, has a sterling reputation. I was on CNN tonight and I was with one of the other panelists, was the author of the Axios report. And he said something in on our panel. He said, is that Mark. Yeah.

[Sam Stein]

Our old friend Mark Caputo. Yes, go ahead.

[Ryan Goodman]

Yeah. And he said, you know, the. The administration, they want. They feel as though the media is not paying enough attention to the judge because he was appointed by Obama. It's like, what? Like meaning what? Like that's absolutely meaningless. And the idea that they would get him removed is. Is inconceivable. That will never happen. He's not doing anything wrong. So I think it's just to play the judges. To play. But I think it's actually more than that. I think it's strangely. To play the public.

[Sam Stein]

Right.

[Ryan Goodman]

And they're not playing the judges. I think they're actually really aggravating the heck out of the judges. I think they will. The judges are actually going to be deeply concerned about this being either contempt or very close to it. Very mischievous in so many ways. The two planes take off when Judge Boasberg takes them, goes on a break in the hearing for the, for the government official to come back and report back. And that's when they take the. When the flights take off. So even if it wasn't like sheer criminal contempt or contempt of court, that's not the way that the executive.

[Sam Stein]

It was playing fairly fast and loose with the rules. Yeah, but let me just. I'm just gonna throw something out at you and you can tell me how crazy it sounds. Should we be at all, even a modicum of relief at seeing them simultaneously supplement all these braggadocious declarations by saying we are not. We are not defying the court order? Because in theory, I mean, Tom Holman aside, put Tom Homan aside for in theory, you can make the case that they could just say, you know what the court. Right. Like, seriously, we don't believe he has any jurisdiction here. We did. We definitely took the planes and, and, and ran with them. We don't believe that. But they were very conscious of saying we're not defying the court order here. Now, maybe this is just temporary, but I don't know. Is there something we can draw from that?

[Ryan Goodman]

Oh, yes, I completely agree with that. I think that to me, exactly as you described it, the red line of a constitutional crisis is the Justice Department and the administration standing up and saying exactly what you said. Yes, that's your court order. You come and enforce it because we're not going to comply with it. And that's not what they're saying.

[Sam Stein]

Although Tom Holmes. Although Tom Holman basically sort of said it. But putting that aside.

[Ryan Goodman]

Yeah, exactly. He said it. And there's a Stephen Miller statement in the last 24 hours as well. It sounds like he's saying. But they're also saying it like on Fox News. Maybe that's red meat or whatnot, or they're preparing the ground for when they do do that. But in court, I do take Some solace in that they are trying to come up with arguments, even if they are somewhat convoluted or very convoluted to say we are in compliance. There's one thing that I should maybe just add where I'm keeping my eye on it, and we'll see how it plays out in the next 24 hours or so. It's the third plane. So the problem is that there's a third plane that takes off from the United States from Texas after Judge Brosberg's written order. And the big question is, who is on that plane and by what legal authority are they claiming to be able to do that?

[Sam Stein]

Are they suggesting that trend gang members are not on that plane, and that has nothing to do with the Aliens Enemies Act.

[Ryan Goodman]

So they're not being clear. What they are saying is that the people on that plane are not being removed under the Alien Enemies Act. Here's what so. So I've got a charitable innocent explanation and I've got a nefarious one. And that's what I think will actually decide define whether or not this is a constitutional crisis of a sort. The charitable one is on the plane are members of the Venezuelan TDA gang. And they have final removal orders that they. In normal immigration procedures. They've already.

[Sam Stein]

Yeah. And in fact, they've gone through the process. They have had their dating court or whatever you want to call it, as opposed to the first two planes where it' just straight up, we swept these people up. They haven't been.

[Ryan Goodman]

Yes.

[Sam Stein]

For an immigration judge. And we just have these wartime authorities now. I got you.

[Ryan Goodman]

Yeah.

[Sam Stein]

That would be an explanation. Okay.

[Ryan Goodman]

And in fact, that is what the government attorney did. Ask Judge Berberg right at the end of the hearing on Saturday night, can we remove those kinds of people? And he said, yes, there's your innocent explanation. The nefarious one is no, they're the same people as the first two flights. And they're claiming Article 2 has enormous authority, which would be anathema to the entire constitution. Just to give a sense of it, it means that the president can get away with things even if the courts order him not to. The president can decide whoever he or she wants to remove from the country and deem them to be members of these gangs with no due process. With no. No due process. Because that's the Alien Enemies Act. But it's also. This is the Article 2 version of the Alien Enemies Act. Like Article 2, Power did not give them any process. And there's a statute that actually governs the removal of Designated terrorist organization members, and he's going over the statute. So that's the very bad one.

[Sam Stein]

Okay.

[Ryan Goodman]

And we'll see, because that's what they're supposed to tell the judge tomorrow.

[Sam Stein]

Two questions, one short, one long. Short one. Did the government agree to stop with the deportations under the Alien Enemies act while the current legal process is playing out?

[Ryan Goodman]

Yes.

[Sam Stein]

Okay. So we should not be seeing any more planes in the interim. Second question I've had.

[Ryan Goodman]

We could see more planes. They'll just say it's under a different authority.

[Sam Stein]

Right, okay, fair enough. Good point. Final question that I've had is it seems like there's so much action tradition, there is so much action judicially, but very little of it seems to be getting up to the Supreme Court, at least as I read it. And this one seems pretty important. Like, you know, we're, we're at a pressure point right here. Why is so little of it making its way to the Supreme Court? Is this just sort of the normal, the more normal process? And should the Supreme Court be intervening, in your estimation, more aggressively or at least, you know, providing some guidance and judgment? Because that's ultimately where a lot of the stuff is going to get resolved.

[Ryan Goodman]

Yeah, I mean, I think it's actually okay that it's percolating its way up and so the Supreme Court can see how the other judges react. I'm also quite worried about the Supreme Court because I think there are at least three justices that are just in the bag for.

[Sam Stein]

Right.

[Ryan Goodman]

President Trump, no matter how anti Democratic his.

[Sam Stein]

Who are your three? I know the two.

[Ryan Goodman]

So I've got Alito and Thomas, and my third is Gorsuch. I think something's.

[Sam Stein]

You think he's in the bag. He seems, he's had some money, he's had some more, he's had some unorthodox decisions, but. Okay.

[Ryan Goodman]

Yeah, yeah. But in some of these, I don't think so. So. And some of them, I actually would prefer to go to the court more quickly so that we could just get it resolved. Some of these in, in particular, like the contempt piece of this or the idea that a president could defy court orders in Article 2. No way. But I do think it's great that we've had across the country, district court judges and courts of appeals on, for example, birthright citizenship come out uniformly in one direction because that's actually a better posture going to. Going to.

[Sam Stein]

Right. They see the breadth of the opposition as opposed to just one district judge. And then you have to weigh on that. I got that yes, and I do.

[Ryan Goodman]

Think this case might be one of them. That's on a kind of a speed. Speed track. Yeah, and it's already expedited proceedings before the Court of appeals in D.C. same thing might happen. I think this one could really fat, like, fast track to the Supreme Court.

[Sam Stein]

Yeah, that would make sense. All right, well, we'll be watching. All right, Ryan, we usually do this. Where are you at, 1 to 10?

[Ryan Goodman]

Where am I at? 1 to 10? Yeah, how about if I'm either at 6 or 8, depending on the third fight?

[Sam Stein]

You were at a 7.5. For lesser things, my man. You gotta be around there. All right, we'll see. We'll see what happens with the third flight. We'll check back with you. Ryan Goodman of Just Security, thanks a bunch. Really appreciate it. Take care, man.

[Ryan Goodman]

Thank you.