A Big Step Toward Authoritarianism

An independent judiciary is a cornerstone of a free and fair society. Our courts serve as a vital check on government power, and we all — regardless of wealth, power, or title — are obligated to follow their orders. 

But the Trump administration is flouting this fundamental principle. For weeks, it has slow-walked and resisted court orders. To name just a few examples, it has continued to freeze spending authorized by Congress, including funds for states to do everything from maintaining roads to recovering from disasters, as well as grants for medical research, despite a federal judge’s order to disburse funding. It has yet to meet the mandates of a different judge’s order to pay for foreign aid work already performed under the terms of contracts. And it ignored a third judge’s instructions to make an official available to testify about the mass firings of federal workers.

Last weekend, the administration tipped decidedly into outright defiance of court orders. On Saturday, following the invocation of the antiquated and draconian Alien Enemies Act, the administration rushed the departures of two planeloads of men to ensure they departed before the judge could weigh in. It then ignored the judge’s instruction to turn the planes around. 

Later, the administration said, without evidence, that the men were gang members and “Tren de Aragua terrorists.” It justified its refusal to return them to custody on U.S. soil by claiming both that the judge’s verbal order did not carry legal weight and that the judge could not issue orders regarding planes that had left U.S. airspace. Neither claim holds water.  (Hina Shamsi, the director of the ACLU’s National Security Project who also serves on POGO’s board, has joined the legal team challenging the deportations.)

Making matters worse, the administration continues to resist the district judge’s efforts to learn more specifics of what transpired last Saturday. In court filings, it is taking a kitchen-sink approach to avoiding scrutiny. It has claimed the court has no jurisdiction to review the president’s authority under the Alien Enemies Act, asked the DC Circuit Court of Appeals to remove the judge from the case, and invoked “national security” to avoid providing the judge with answers to his questions. Meanwhile, President Donald Trump publicly called for the judge’s impeachment, earning a rare rebuke from Chief Justice John Roberts. 

Justifying the administration’s actions, Attorney General Pam Bondi suggested judicial overreach, claiming that with his order, “This one federal judge again thinks he can control foreign policy for the entire country, and he cannot.” 

We shouldn’t be surprised. For weeks, administration officials have been laying the rhetorical groundwork for disregarding the judiciary. 

Last month, Vice President JD Vance raised alarms about a constitutional crisis when he argued on X that “Judges aren’t allowed to control the executive’s legitimate power.” 

This week, border czar Tom Homan, the presidential appointee in charge of deportations, took it a step further, outright stating,  “I don’t care what the judges think.”

Finally, yesterday, after the judge in the rendition case called the administration’s response “woefully insufficient,” the president himself responded. He said the judge was “doing everything in his power to usurp the Power of the Presidency.” He went on to decry more broadly judicial attempts to rein in his administration.

This attitude toward the courts is not normal, and it is not acceptable. In fact, it is a hallmark of authoritarianism. A president and administration unconstrained by the law makes us all less safe, less free, and less secure. 

Violating this weekend’s court order is especially alarming, given the nature of the harm to the people involved. Because the administration did not comply with the judge’s orders to turn the planes around, 137 men have been transferred to El Salvador under the Alien Enemies Act, even though most of them are from an entirely different nation, Venezuela. This rendition has happened without a trial, a court hearing, or any opportunity to refute the allegations against them or contest the legality of their transfer. 

The administration insists that its reasons for denying these men due process are sensitive national security secrets. A number of these men had no criminal records. Some of their lawyers and families have argued that they were wrongly identified as gang members because of innocuous tattoos. An ICE officer disputed that claim, but tried to spin the fact that the government lacked specific information about each individual, saying this actually highlights the risks they pose.    

In El Salvador, the men were sent to a notorious prison — one that a former member of the U.N. Subcommittee on the Prevention of Torture, Miguel Sarre, described as a "concrete and steel pit" that is used "to dispose of people without formally applying the death penalty.” It is unclear whether any U.S. court now has the authority to order their release. In the past, El Salvador’s government has disregarded orders from its own courts to release prisoners, and its President Nayib Bukele has been taunting the U.S. judge who ordered the planes returned, and accusing him of attempting a “judicial coup” on social media.   

In short, this administration has claimed the extraordinary power to arrest, detain, deport, and perhaps even disappear people who live in the United States without full information on who they are — let alone the due process guaranteed by our Constitution. The president’s flouting of a judicial review of this power ought to be a five-alarm fire. 

These efforts to undermine, intimidate, and sideline the courts are not happening in a vacuum.  In its first two months, the Trump administration has acted relentlessly to expand and consolidate power in the hands of Trump and his direct subordinates. It has closed off internal channels for dissent, accountability, and oversight, and it has replaced deliberative processes with fiat. To aid its efforts, the administration has exploited the tried-and-true tool of autocrats, invoking an emergency to attempt to persuade the public to give up rights that the American public would never relinquish in “ordinary” times.

This is not, sadly, unfamiliar territory. In 1988, Congress apologized for the “racial prejudice, wartime hysteria, and a failure of political leadership” that led to the internment of Japanese Americans during World War II. Our government has not yet disavowed its racial profiling, round-ups of Muslim Americans, and mass surveillance after 9/11. And today, a president who campaigned on racist, anti-immigrant rhetoric is falsely asserting a wartime authority that could very well transform the nation into a police state engaged in internment, deportation, and — apparently — even mass rendition of people in the U.S. Once a court order in defense of people’s rights can be ignored, nobody will be safe. 

We must also acknowledge that this unchecked power is being wielded in a very specific way: against people and institutions based on the administration’s own determination of whether their identities or beliefs are legitimate. This, too, is a hallmark of authoritarianism. 

The administration has banned diversity, equity, inclusion, and accessibility programs by federal contractors, terminated grants, and even threatened private sector entities with criminal investigations over their own programs. It has deleted data and websites that discussed gender, ranging from information on health concerns for the LGBTQ+ community to data from adolescent health surveys. It has moved to ban transgender members of the military, claiming their service is detrimental to national security. 

Thus far, the courts have been the most significant bulwark against such attacks. All of these actions, and many more, have been challenged in court. Congress has shown little interest in countering the most worrying and harmful impulses of the new president — even those actions that would negate Congress’s own power. The remaining check on Trump’s attempt to suspend constitutional order is the judiciary. To give blame where it is due, the courts, especially the Supreme Court, have plenty of responsibility for bringing the country to this moment of ascending authoritarianism. 

But if court orders lose their meaning, we will be in a profoundly dangerous place. It’s incumbent on the administration to follow the law. It’s incumbent on the courts to block executive actions that break the law and trample people’s rights. It’s incumbent on Congress to stand up to presidential impunity. And it’s incumbent on all of us to understand the stakes and speak out.