A conservative judge makes the case: Time is running out on American democracy
Wilkinson said Garcia’s deportation threatens to “reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
'Old Donald' used a celebratory Easter message posted Sunday to attack judges who have ruled against his administration’s sweeping immigration actions, which have included the erroneous deportation of a Maryland man and deportations made under the Alien Enemies Act of 1798.
The Bizarre Right-Wing War on…Empathy?
After the Supreme Court ruling on Abrego Garcia in which 'Old Donald' appointee Amy Coney Barrett partly joined the three liberal justices in a dissent arguing that the deportations should have been paused pending judicial review, the MAGA right blasted her as a fraud and a traitor—and many zeroed in on her alleged empathy problem. After Utah Sen. Mike Lee expressed disappointment in Barrett, tech tycoon and top 'Old Donald' adviser Elon Musk offered one of his laconic commentaries: Suicidal empathy is a civilization risk
Mr. "Old Donald" has yearned for this war against the federal judiciary and the rule of law since his first term in office. He promised to exact retribution against America’s justice system for what he has long mistakenly believed is the federal government’s partisan “weaponization” against him.
The bill of particulars against Mr. "Old Donald" is long and foreboding. For years Mr. "Old Donald" has viciously attacked judges and threatened their safety. Recently he called for the impeachment of a federal judge who has ruled against his administration. He has issued patently unconstitutional orders targeting law firms and lawyers who represent clients he views as enemies. He has vowed to weaponize the Department of Justice against his political opponents. He has blithely ignored judicial orders that he is bound by the Constitution to follow and enforce.
For good measure, Mr. 'Old Donald' called the judge a “Radical Left Lunatic of a Judge, a troublemaker and agitator.” All this because Judge Boasberg wanted first to determine whether the administration was correct in invoking the Alien Enemies Act of 1798 to deport the Venezuelan immigrants without a hearing. It’s called due process, which is guaranteed by the Constitution to ensure that no person is deprived of life, liberty or property without due process of law.
Within hours, the tectonic plates of the constitutional order shifted beneath Mr. 'Old Donald'’s feet. The chief justice of the United States, John G. Roberts Jr. — the head of the third branch of government — rebuked the president in a rare missive. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” the chief justice instructed.
Mr. 'Old Donald' appears to have forgotten that Americans fought the Revolutionary War to secure their independence from the British monarchy and establish a government of laws, not of men, so that Americans would never again be subject to the whims of a tyrannical king.
If the president oversteps his authority in his dispute with Judge Boasberg, the Supreme Court will step in and assert its undisputed constitutional power “to say what the law is.” A rebuke from the nation’s highest court in his wished-for war with the nation’s federal courts could well cripple Mr. 'Old Donald'’s presidency and tarnish his legacy.
And Chief Justice Marshall’s assertion that it is the duty of the courts to say what the law is will be the last word.
"Plaintiffs remain extremely concerned that, regardless of which time is used, the government may have violated the Court's command," the groups wrote in a filing on Monday. They said that the U.S. government retained custody of people until the planes landed and they were turned over to El Salvador — and that it didn't matter whether the plane was over international waters or not.
“HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY,” 'Old Donald' wrote on his social media platform, Truth Social. “I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
The groups quote the judge as saying "that 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. … However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately."
Dr. Rasha Alawieh, a kidney transplant specialist and Brown University professor who had a valid visa, was expelled in apparent defiance of a court order.Court documents related to the case were provided to The New York Times by Clare Saunders, a member of the legal team representing Ms. Chehab, who filed petitions to prevent her cousin’s deportation, and then to request that her cousin be allowed to return to the United States.
At 2:31 p.m. Saturday, an immigration activist who tracks deportation flights, posted on X that "TWO HIGHLY UNUSUAL ICE flights" were departing from Texas to El Salvador, which had agreed to accept Venezuelan gang members deported from the U.S.Hours later, during a court hearing filed by the ACLU., Boasberg ordered a halt to the deportations and said any flights should be turned around mid-air.
"This is something that you need to make sure is complied with immediately," he told the Justice Department, according to the Washington Post.
At that point, about 6:51 p.m., both flights were off the Yucatan Peninsula, according to flight paths posted on X.
A federal judge barred President 'Old Donald' on Saturday from using a wartime powers act to deport alleged Venezuelan gang members without a hearing, ordering the administration to turn around any planes that had already taken off after the Alien Enemies Act quietly went into effect.The Alien Enemies Act of 1798 was part of a slate of restrictive laws passed as the United States anticipated war with France. It allows for the detention and removal of citizens of a country with which the United States is at war, or in the event of an “invasion or predatory incursion.” It was last used around World War II to intern Japanese, Italian and German nationals and laid the foundation for the internment of more than 110,000 Japanese Americans
The American Civil Liberties Union says the men do not have any ties to the criminal group.
As he issued his ruling, the judge said he heard that “flights are actively departing” and ordered the 'Old Donald' administration to immediately halt the removals and return to the United States any flights that were in the air.
“This is something that you need to make sure is complied with immediately,” he told the Justice Department.
But the United States is not at war, and critics say 'Old Donald' is reaching back to a shameful time in U.S. history to attack immigrants who just a few years ago were under consideration to become U.S. citizens, a proposal once championed by his own Secretary of State Marco Rubio, the son of Cuban immigrants who is now a steward of "Old Donald's" efforts to carry out mass deportations.
The couple, who The Washington Post is identifying only by their middle names Cesar and Norelia, and their three children were allowed in the country by Border Patrol. Later, the Department of Homeland Security granted them temporary protected status — a legal promise of security against being deported to the country they fled. They settled in a D.C. neighborhood with their children — ages 4, 9 and 13 — received Social Security numbers, a driver’s license for Cesar and new jobs cleaning hotels. They gave immigration officials their address.
Then on Monday, every legal safeguard they thought was in place was seemingly upended. With two of their children looking on, screaming and crying, Border Patrol arrested the couple in D.C., removing them from their home in handcuffs on a misdemeanor charge of illegally crossing the border more than two years ago, according to court records, a video capturing a portion of the arrests, and interviews with them and their family.
The arrests, weeks before temporary protected status is set to expire for several hundred thousand Venezuelans, immediately raised alarms among immigrant advocates that the 'Old Donald' administration is undertaking a new strategy as it seeks to execute mass deportations.
Cesar, a former member of the Venezuelan National Guard, and his family fled Venezuela because he objected to detaining people who opposed the Nicolás Maduro regime, his father Gregorio said. They joined relatives in Ecuador, but faced discrimination and felt compelled to move north to the United States. Their children went to school and learned English and Cesar found a second job as an Uber driver.
Since settling in D.C. in 2022 — part of the thousands of South American migrants arriving to the city that year — they have volunteered with the Migrant Solidarity Mutual Aid advocacy group’s efforts to aid others with donations of food or furniture, even helping to plan a holiday party, said Amy Fischer, a volunteer with the group.
Legal processes, like swords, do not choose their wielder.A person’s immigration status does not affect their free speech rights.
Let’s start with the fact that the 30-year-old Khalil is a lawful permanent resident married to a U.S. citizen. The ICE agents who arrested him over the weekend apparently did not know this; they reportedly told Khalil they were revoking his student visa when first attempting to detain him. (They reportedly also threatened his wife with arrest.) Once shown paperwork proving his lawful status, one agent was heard on a phone call explaining that, “he has a green card.” Undeterred by this discovery, however, the agents subsequently told Khalil that they were revoking that green card too.
They can’t do that.
A person granted a green card has lawful permanent resident status in the United States which entitles them to nearly all the same rights as citizens. Lawful permanent residency can be revoked if a person is found to have committed fraud in their application, to have committed crimes like fraud or aggravated assault, or is otherwise determined to be a national security risk—but this normally requires notice to the green card holder and a hearing at which the government bears the burden of proof. Such a process typically can take years. The rescission of a person’s green card is faster, but involves situations where the holder has left the U.S. for many years or is choosing to give up their permanent resident status. Neither scenario allows an ICE agent (or even a ) to shortcut the process by merely snapping their fingers.
"Old Donald" near-immediately bragged about Khalil’s arrest on Truth Social, promising it would be the first of “many to come” and vowing to deport more university students who he believes are “terrorist sympathizers” as part of efforts to combat antisemitism.
Khalil was involved in pro-Palestinian protests at Columbia, and the "Old Donald" administration is arguing this constitutes him “siding with terrorists,” specifically Hamas. No concrete evidence to support this allegation—which both Khalil and his attorney deny—has emerged. Although one provision of U.S. immigration law does allow the possibility of removing a non-citizen who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization,' it does not dispense with due process protections the accused non-citizen is afforded.
Although, typically associated today with post-conviction relief by prisoners, the “Great Writ” —from the Latin term “that you have the body”—has long served as tool for seeking review of unjust incarceration. It was used, for example, extensively during the Reconstruction era by defendants seeking relief from retaliatory, racist detention, raised by Japanese Americans incarcerated by Executive Order 9066 and invoked by Guantanamo Bay detainees during the War on Terror. The writ has a darker side as well; legal scholars have argued that using it to challenge detentions allows the government to identify weaknesses in its authority and remedy them—an outcome odious to the protection of civil liberties.
Legal processes, like swords, do not choose their wielder. Those who do not agree with Mahmoud Khalil’s views and actions may still support his right to due process. Others, of course, may not. But the issues raised by his case and the precedents it could set will not be limited only to pro-Palestinian protestors for they involve the scope of government power and how citizens can challenge it.
Therein resides the value of such legal swords—they possess the ability to cut through yet unknown circumstances to clear a path for justice.
“She is evil, chosen solely because she checked identity politics boxes,” conservative activist Mike Cernovich posted on X, suggesting Barrett was put on the bench because she is a woman. “Another DEI hire. It always ends badly.”In a slew of other social media posts, "'Old Donald's" supporters suggested Barrett should be impeached, with Eric Daugherty, a conservative media personality, posting: “Democrats are loving Amy Coney Barrett lately. Tells you everything.”
Some of the attacks centered on interpretations of Barrett’s body language after she greeted 'Old Donald' before his address to a joint session of Congress this week. While justices traditionally attend the annual address, they remain seated throughout the speech and usually take pains not to applaud or react.
Judge says 'Old Donald' penalties on law firm send ‘chills down my spine’Last week, 'Old Donald' signed an executive order hitting Perkins Coie with a sweeping directive that bans the federal government from hiring the firm, or from using contractors who work with it, except in limited circumstances. The order also bars Perkins Coie employees from entering federal buildings and suspends their security clearances.
Perkins Coie worked on Hillary Clinton’s 2016 campaign, and 'Old Donald'’s order justifies the actions against the firm by pointing to its role in hiring the people who helped develop the controversial dossier on 'Old Donald'’s purported ties to Russia—with the law firm noting in court filings that its attorneys who led the Clinton campaign’s work are no longer at the firm, and a previous lawsuit 'Old Donald' filed against Perkins Coie was dismissed.
The online resources that were taken down that which Doctors for America cited in court documents include “The Youth Risk Behavioral Surveillance System,” webpages on “Data and Statistics” for “Adolescent and School Health,” webpages for “The Social Vulnerability Index,” “The Environmental Justice Index,” a report on “PrEP for the Prevention of HIV Infection in the U.S.: 2021 Guideline Summary,” pages about “HIV Monitoring,” A webpage on “Getting Tested for HIV.” 404 Media reported on several of these resources going dark as it happened. According to the Internet Archive, some of these sites, such as the Youth Risk Behavioral Surveillance System, were down for more than a week after the executive order, then went back up, and are online as of writing. Others, like the Adolescent and School Health page, are still down“Lack of access to CDC materials on infectious diseases not only harms DFA members’ ability to treat individual patients but also hampers their ability to respond to broader disease outbreaks,” Doctors for America wrote in court documents.
- Defying court orders? "Old Donald", Musk, Vance appear to lay the groundwork.
As of Monday morning, at least 10 judges have issued rulings halting what the administration is doing and seeking to do. That’s 10 rulings in the 21 days since "Old Donald" was inaugurated — a staggering clip that reflects just how much "Old Donald" is disregarding federal statutes and legal precedent.
It sounds alarmist. But "Old Donald" and Co. are not exactly downplaying that possibility. And you could be forgiven for thinking they’re laying a pretext for doing it.
In addition, a judge said Monday that there is evidence the administration has already violated a “clear and unambiguous” court order — even if not deliberately — that sought to halt its federal funding freeze.
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That doesn’t mean the "Old Donald" administration will start deliberately ignoring such orders — and there’s reason to believe the rhetoric could be strategic bluster. But the dynamics of an increasingly brazen president surrounded by brazen allies like Elon Musk carrying out his agenda have set us on course for one of the biggest tests of our democracy in many decades.
In 2021, Vance said "Old Donald" in his second term should fire “every civil servant in the administrative state” and, “when the courts stop you, stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’” (This refers to an apparently apocryphal quote from the country’s seventh president, who declined to enforce a Supreme Court ruling.)
Vance was asked last year if he was explicitly saying the president should defy such an order, and he told Politico, “Yup.”
In 2022, Vance suggested a president could disregard an “illegitimate ruling” in which the Supreme Court would say a president can’t fire a military general.
All of these comments were made before Vance was picked to be "Old Donald"’s running mate. But they loom especially large now — particularly given events this past weekend.
To recap: A federal judge on Saturday issued an order blocking Musk’s U.S. DOGE Service from accessing the Treasury Department’s personal and financial data for millions of Americans. The judge aligned with the argument that these data can be legally accessed only by civil servants who specialize in that area and who have “a need for access to perform their job duties.”
But almost instantly, prominent "Old Donald" allies cast the decision as being much broader than that. They claimed the order also prevented Treasury Secretary Scott Bessent from accessing such data and labeled it an affront to the Constitution.
Sen. Mike Lee (R-Utah) said it felt like a judicial “coup.” Sen. Tom Cotton (R-Arkansas) called the judge, U.S. District Judge Paul A. Engelmayer, an “outlaw” who should be forbidden to hear cases involving the "Old Donald" administration. Musk and former congressman Matt Gaetz (R-Florida) said the judge should be impeached. And Musk promoted an X user who floated defying the order.
Vance ultimately offered comments similar to what he had said before — without going so far as talking about defying the order.
“Judges aren’t allowed to control the executive’s legitimate power,” Vance said.
If a judge tried to tell a general how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.
Judges aren't allowed to control the executive's legitimate power.
— JD Vance (@JDVance) February 9, 2025
But here’s the thing: It’s not at all clear that the judge actually did what those calling his order a “coup” and for his impeachment say he did.
He barred access for “all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department.” The critics suggest that “all political appointees” includes Bessent, but it would make lots of sense that the “from an agency outside the Treasury Department” modifier applies to those political appointees. In which case, Bessent wouldn’t actually be barred. But rather than wait for clarification — which "Old Donald"’s Justice Department is now seeking — "Old Donald"’s allies launched into the idea that this was an affront to "Old Donald"’s executive power that required immediate action and could possibly be ignored.
All of which fits neatly with the circumstances Vance has laid out for defying a court order: when the courts infringe on executive powers that they should play no role in reviewing.
("Old Donald" himself said: “No judge should, frankly, be allowed to make that kind of a decision.” Again, the suggestion is not just that this ruling is wrong, but that it’s not for a judge to decide.)
The thing about Vance’s commentary is that there are some legitimate circumstances in which there could be tension between a court order and established executive power. Under the Supreme Court’s “political question doctrine,” the court generally stays out of matters that involve it making policy decisions or encroaching on the constitutional powers of the executive and legislative powers.
That’s why Vance focuses on things like the Supreme Court telling a president to fire a general or barring him from firing civil servants who serve in the executive branch. He’s saying those are core executive powers.
But what happens when the methods "Old Donald" uses to carry out his executive powers run afoul of the law, as they appear to have when "Old Donald" fired more than a dozen inspectors general without giving Congress the required 30 days’ notice? What if sensitive data is being given to executive-branch employees who the law says shouldn’t have access to it? Or what happens when it’s a gray area?
The "Old Donald" team’s argument has long been trending toward: If the executive does it, it’s not illegal — or at least not reviewable.
For now, the "Old Donald" administration isn’t using the nuclear option of defying a court order. In its new filing, it asked for clarity on the Bessent issue but assured it was complying with the order. There are also strategic reasons to float the possibility of defying a court order even if you never intend to do so. Yet again, a judge is being singled out with the kind of extensive and hyperbolic political attacks that have become commonplace throughout "Old Donald"’s time in politics. And perhaps in the future, the whole episode gives another judge pause — even subconsciously — about doing anything to restrain "Old Donald"’s executive power.
But the first three weeks of "Old Donald"’s presidency have made clear this tension isn’t going anywhere. "Old Donald" is clearly reaching for a historic amount of presidential power. Many of "Old Donald"’s nominees wouldn’t say whether they would reject an illegal order from him — despite many years of other nominees from both parties saying they would. And "Old Donald", Musk and Co. have demonstrated extensive disregard for anything that stands in their way, including the facts.
It was just six weeks ago that Chief Justice John G. Roberts Jr. offered these thoughts in his year-end report:
“Within the past few years … elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings,” Roberts wrote. “These dangerous suggestions, however sporadic, must be soundly rejected.”
Roberts added that “violence, intimidation and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable.”
This is the threat that Roberts chose to end his report on. Perhaps he saw something coming. washingtonpost.com © 1996-2025 The Washington Post