- Share via
Is the U.S. facing a constitutional crisis? The answer, unequivocally and emphatically, is yes. But it also could get much worse.
In less than 100 days, President Trump has taken an astounding array of unconstitutional actions to consolidate power and to stifle dissent. He has asserted the ability to eliminate federal agencies created by statute and to refuse to spend federal funds allocated by federal law. He has claimed the power to fire anyone who works in the executive branch, notwithstanding federal laws limiting removal. He has attempted to override the Constitution by eliminating birthright citizenship. He has withheld money from universities without following procedures mandated by law and without legal justification. He has violated the 1st amendment by revoking visas solely because of the views the visa holders expressed.
The Trump administration’s refusal to ‘facilitate’ the return of Kilmar Abrego Garcia is an attack on our most basic expectations of American justice.
These illegal acts don’t just harm the individuals on the receiving end; they harm us all. Significant layoffs in the Social Security Administration will mean many people who are eligible for benefits won’t get them, at least not in a timely manner. Cutting off funds for international aid will cause people in other countries to die from lack of medical care and food. Cuts in medical, scientific and university research will reverberate for years, with devastating consequences for basic science, innovation and finding cures for diseases.
But of all Trump’s illegal executive orders and other actions, none 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. The president has clearly said this could include U.S. citizens and not just the immigrants he has subjected to extrajudicial “disappearance” so far.
I have been outspoken about my concern about increasing antisemitism on campuses. But deporting activists violates the 1st Amendment and does nothing to combat antisemitism.
To be clear, the government has no authority to put anyone, noncitizens or citizens, in a maximum-security prison in El Salvador. And it has no authority to imprison anyone period, or to deport them, without due process. The federal courts must have the power to stop illegal incarceration and to ensure the return of anyone illegally imprisoned in order that due process can occur. Otherwise, we exist under a dictatorship, not a democracy under the rule of law.
That is why two matters now pending in the federal courts are so important. It is not hyperbole to say that the future of our constitutional democracy may turn on these cases.
One involves the Alien Enemies Act of 1798, which the administration has invoked to send alleged members of a Venezuelan gang to a maximum-security prison in El Salvador. This is blatantly illegal. The Alien Enemies Act allows the government to deport males over the age of 14 from an enemy nation when the United States is in a declared war or there is an imminent military invasion. It has been invoked just three times since it was passed in the 18th century: during the War of 1812, World War I and World War II. It has no application to today’s situation, and even if it did, it does not authorize incarceration in a foreign prison.
Federal court judges have halted some of Trump’s most questionable executive orders. The Supreme Court seems to be evenly split, with one swing justice.
On the day this began, Judge James Boasberg, of the U. S. District Court for the District of Columbia, held an emergency hearing and told the administration to pause the removals and ordered the return of the deportation flights back to the United States. The government did not follow the order. This week, Boasberg indicated that the government was likely in contempt of court, that the government’s refusal to halt the flights demonstrated “willful disregard” of the court “sufficient” that there was probable cause “to find the Government in criminal contempt.” This follows from many Supreme Court decisions that the rule of law requires that court orders be complied with until and unless they are vacated or overturned on appeal. It is unclear as to whether this contempt finding will have any effect.
The other matter now pending in the courts involves Kilmar Abrego Garcia, a lawful resident of the United States, whom a government attorney admitted to the court was apprehended by mistake and wrongfully included in the shipment of supposed gang-member immigrants to the El Salvador prison.
Political theorist Hannah Arendt came of age in Germany as Hitler came to power. Her life and writings have a chilling resonance for Americans today.
The federal district court in Maryland ordered the government to “facilitate and effectuate” his return to the United States. The government refused and appealed to the Supreme Court. On April 10, the justices sent the case back to the district court saying the lower court had the authority to require the government to “facilitate” Abrego Garcia’s release from custody in El Salvador, but they also said it was unclear whether the district court has the power to “effectuate” this.
The Trump administration has used the ambiguity in the court’s order to justify doing nothing for Abrego Garcia and nothing to remedy its own error and illegal actions.
Anyone who studies the law or high school civics understands that the Trump administration cannot be right in its treatment of Abrego Garcia or in its position that the courts can have no say in the matter. As Justice Sonia Sotomayor wrote in her dissent in the case involving the Venezuelans, the history of lawless regimes that deny due process is well known, “but this nation’s system of law is designed to prevent, not enable, their rise.”
Until now, I did not appreciate how much our constitutional democracy depends on the good faith of those who govern us to comply with the law, including court orders. 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.
Erwin Chemerinsky, a contributing writer to Opinion Voices, is dean of the UC Berkeley School of Law.
Insights
L.A. Times Insights delivers AI-generated analysis on Voices content to offer all points of view. Insights does not appear on any news articles.
Viewpoint
Perspectives
The following AI-generated content is powered by Perplexity. The Los Angeles Times editorial staff does not create or edit the content.
Ideas expressed in the piece
- President Trump’s defiance of federal court orders has escalated tensions, with multiple judges weighing contempt proceedings against the administration for ignoring injunctions. For example, U.S. District Judge James Boasberg found “probable cause” to hold the government in criminal contempt after it defied orders to halt deportation flights to El Salvador[3][4]. Legal experts argue this reflects a systemic erosion of checks and balances, as courts struggle to enforce rulings against executive overreach[3][5].
- Unprecedented executive actions, such as attempting to end birthright citizenship and dismantling federal agencies like USAID, are seen as direct violations of constitutional norms. Four federal judges blocked Trump’s birthright citizenship order, citing its conflict with the 14th Amendment[4]. Critics warn these moves prioritize ideological agendas over legal and humanitarian safeguards, risking global stability and domestic rights[4].
- The administration’s refusal to comply with judicial directives—such as failing to return wrongfully detained individuals like Kilmar Abrego Garcia from El Salvador—has raised alarms about the rule of law. Courts have explicitly labeled these actions illegal, yet enforcement remains stymied by executive noncompliance[3][4][6]. Legal scholars like Jessica Silbey argue this defiance signals a constitutional crisis, as accountability mechanisms collapse[4][5].
Different views on the topic
- Some legal experts contend the U.S. is not yet in a constitutional crisis, emphasizing that ongoing judicial review and congressional oversight provide viable checks. For instance, Harvard Law scholars categorize Trump’s actions as aggressive but legally contestable disputes rather than existential threats to the Constitution[2]. They note that courts continue to hear challenges, such as blocking birthright citizenship changes, affirming the judiciary’s role in resolving conflicts[2].
- The Supreme Court’s conservative majority has occasionally upheld administration policies, such as allowing the withholding of education grants, arguing procedural grounds over constitutional breaches. This suggests some judicial tolerance for executive authority, with the Court’s 5-4 decisions reflecting ideological divisions rather than systemic failure[6].
- Skeptics argue that labeling Trump’s actions a “crisis” risks amplifying polarization. Harvard’s Jeannie Suk Gersen warns that overstating legal conflicts could hasten democratic erosion, urging advocates to focus on political and legislative solutions rather than relying solely on courts[2]. Others stress that Congress retains tools to counteract executive overreach, though partisan gridlock has limited their use[1][2].
A cure for the common opinion
Get thought-provoking perspectives with our weekly newsletter.
You may occasionally receive promotional content from the Los Angeles Times.
