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 Donald 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.
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.
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.
This 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.