As Donald Trump vows to deport millions of undocumented migrants, NBC’s Kristen Welker asked the president several times if he felt bound by the due process clause of the Constitution. And several times the president answered, “I don’t know.”
Of all the many ways that this president has defied the rule of law, his non-answer might be the most alarming. His casual cynicism, feigning ignorance over the clear language in the nation’s most fundamental document, demonstrates just how determined he is to ignore any and all restraints on his power.
“It’s enormously disturbing,” Erwin Chemerinsky, the law school dean at the University of California, Berkeley, told The New York Times. “It is so troubling to hear the president and top executive officials give so little regard to the Constitution. It’s important to emphasize that the due process clause of the Fifth Amendment says no person can be ‘deprived of life, liberty or property, without due process of law.’ It doesn’t say ‘citizen.'”
The focal point of Welker’s interrogation was the ongoing struggle over Trump’s decision to seize over 200 Venezuelans and exile them — without any notice or hearing or appeal — to prison in El Salvador. While numerous federal judges have ruled against Trump in this case, it’s only one of many battlegrounds that pit the legal system against an unbound and unbowed president.
Trump keeps firing federal employees, closing government departments and withholding funds appropriated by Congress. He’s tried to punish and intimidate a range of institutions that dare to oppose him — law firms, universities, TV networks — and many are starting to fight back in the courts.
“The legal clashes over President Trump’s blizzard of executive actions are intensifying, with new lawsuits and fresh rulings emerging day and night,” reports the Times. “As of May 6, at least 140 of those rulings have at least temporarily paused some of the administration’s initiatives.”
As these clashes escalate, and Trump’s anger rises, the stakes rise as well. “The rule of law in the United States has been traditionally understood to use checks and balances to prevent too much concentration of arbitrary executive power,” notes the Times. “But the maximalist cascade in the early days of Mr. Trump’s second term is testing the fundamental structures of American democracy in a way that has never been seen before.”
It’s not just law professors who are disturbed by Trump’s behavior. In the latest Washington Post/ABC poll, 64 percent of respondents say the Trump administration “is going too far” in asserting executive power, and 62 percent fear he “doesn’t respect the rule of law.”
The Venezuelans jailed in El Salvador have become the most visible test case of Trump’s disdain for legal procedures. He told Welker that they are “some of the worst, most dangerous people on Earth” and complained, “I was elected to get them the hell out of here, and the courts are holding me from doing it.”
He’s right that he campaigned on the promise to deport migrants, and in the Post/ABC poll, immigration remains his most popular issue. But as the Times notes, the American system of checks and balances was deliberately designed to contain and restrain “arbitrary executive power.” That is exactly how it is working — much to Trump’s dismay.
Trump justifies deporting the Venezuelans by invoking the Alien Enemies Act, an 18th-century statute that gives a president expanded powers when faced with “invasion” by a foreign power. Virtually every judge who has considered the claim — including several appointed by Republicans — has rejected Trump’s argument.
District Judge Patricia Millet, for instance, noted that the last time the statue was invoked, during World War II, enemy sympathizers were provided a 30-day notice to contest the accusations against them. “Nazis got better treatment under the Alien Enemies Act than has happened here,” she observed.
Judge J. Harvie Wilkinson, a Reagan appointee on the 4th Circuit Court of Appeals, wrote that Trump’s policies “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
And Judge Fernando Rodriguez Jr., who was appointed to a district court in Texas by Trump himself, held that his use of the Alien Enemies Act was unlawful and “is contrary to the plain, ordinary meaning of the statute’s terms.”
The “plain, ordinary meaning” of the whole Constitution is that no president can defy the due process clause — or any other provision. As Trump continues to do that, the risk of a profound constitutional crisis continues to grow.
Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at [email protected].
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