ARE WE THERE YET?

     Anyone who has driven kids on a road trip to destinations of varying distances has at least once heard the question: are we there yet? Repeatedly being asked that question can quickly become annoying.

     Not wanting to be annoying, I ask the same question: are we there yet?

     I write this on Day 61 of the dystopian Trump 2.0 regime. If you feel like this is the 601st  day of this current regime, you’re not alone. The tsunami of chaos, confusion, and destruction has enveloped all of us.

     Like many others, I wrote before and after the November election that our democracy and the rule of law were under threat. I warned that the Trump administration’s disregard of the law and the courts would at some point result in a Constitutional crisis.

     For nearly eight weeks the rule of law has taken a beating by the Trump administration. Much of it had its genesis in the DOGE assault on the “Deep State.” Elon Musk, along with his merry band of misfits, has taken a metaphorical chainsaw to federal departments and agencies and put those parts through a metaphorical wood-chipper.

     I guess we know what two movies are favs of Musk.

     But, hey, at least he got a White House commercial and an endorsement for his Teslas. He also received a shout out from the Commerce Secretary urging investors to buy Tesla stock.

     A couple of days later, about 48,000 Tesla cyber-trucks were recalled. Oopsies.

     Remember the dust up caused by Kelly-Anne standing in the White House driveway gushing about wearing a bracelet sold by Ivanka? That seems like eons ago.

     At any rate, there has been a torrent of litigation challenging any authority of Musk and his minions have to dismantle departments and agencies resulting in the diminishing of services at the cost of thousands of jobs. While Trump/Musk have prevailed in a few of these cases, they’ve been stymied in the majority of cases.

     However, there’s a long way to go before most of these cases are resolved at the district court level and finally decided at the appellate level. Fundamentally, all of these cases are about the power of the president under the so-called Unified Executive theory.

     These are without doubt important cases which, when resolved, will impact the lives of millions of Americans. But important as they are, I believe this is the opening act for what is to come.

     About two weeks ago, Columbia University graduate student Mahmoud Khalil was arrested by people purported to be ICE agents. Khalil did not hold a student visa but instead possessed a green card. Leaving his pregnant wife, he was spirited off to Louisiana from where he would have been deported.

     His offense was publicly advocating the Palestinian position in urging a cease fire in Gaza. The government contends that was the reason Secretary of State Rubio revoked Khalid’s Green Card.

     I’m no immigration law expert, but I don’t believe that leading rallies is sufficient justification for a green card revocation. Absent any further allegation of what could be alleged to be criminal activities, this is a case of viewpoint discrimination.

     Thanks to quick court action, Khalil was transported to New Jersey pending a hearing on the “merits” of the government’s case.

      Shortly afterwards, Dr. Rasha Alaweih, who possessed a visa to come to the states and teach at the Brown University Warren Alpert School of Medicine, was detained at Boston’s Logan Airport for 36 hours, after which she was deported back to Lebanon.

      Alaweih’s offense was that she openly supported and attended the funeral of a Hezbollah leader. For that she was accused of supporting terrorists dedicated to “killing Americans.” Alaweih contends that she was sympathetic of the leader’s religious, not political, teachings.

      During that detention period, an attorney for Alaweih submitted the appropriate filings in federal court, after which the court ordered that both the government and Alaweih appear for a hearing on the matter. Alas, that was not to be because Alaweih was deported after the order was issued. The government claims that the order was not communicated to the Boston authorities in time to prevent her deportation.

     If this looks like foreshadowing, that’s because it is.

     On Saturday, March 15, President Donald Trump, signed an Executive Order (what else) invoking the 1798 Alien Enemies Act, which he then used as legal authority to deport more than 230 Venezuelans, many allegedly members of the Tren de Aragua gang.

     In an effort to clarify this law, one that’s almost as old as Trump’s fictitious 300-year-old Social Security recipient, a little history.

     In spite of Madison’s warning against forming “factions,” by 1798 two political parties had formed: the Federalists led by President John Adams, and the Democratic-Republican party led by Vice President Thomas Jefferson. Awkward…

     The Federalists, commonly assumed to be anglophiles, worried that the Francophile democratic republicans would politically benefit from the from the alien French, enacted the 1798 Act. At the time the United States was in an undeclared naval conflict with the French.

     By passage of the Act, men thought to be French born, or descendants of French immigrants could be detained and deported to protect the country from espionage or other acts in support of France.

     There are two bases when the Act can be invoked:

Basis 1: "...whenever there shall be a declared war between the United States and any foreign nation or government," or

Basis 2: When "any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government..." (emphasis mine)

To be clear, the Act was never invoked in 1798 or 1799, or 1800 for that matter.

     Trump’s E.O. explicitly named Tren de Aragua as a gang associated with, if not controlled by the President of Venezuela. Evidently, without any evidence whatsoever, Trump is trying to argue that the gang represented a predatory incursion by Venezuela.

     It is of no small import that we’re not at war with Venezuela.

     And, as it’s been well reported, the Act has been invoked only three times: 1812 War with England, World War I, and World War II.

     In the early morning hours on the 15th, attorneys sued in federal district court on behalf of five of the men in custody claiming that they were not members of the gang. At mid-morning on the 15th, federal district court Chief Judge Boasberg issued a Temporary Restraining Order (TRO) preventing the deportation of anyone and scheduled a 5 p.m. hearing on the matter.

     At 4 p.m., the E.O. was published.

This from the Associated Press timeline:

5 p.m.: Boasberg convened a hearing and asked Deputy Assistant Attorney General Drew Ensign if the government plans to deport anyone under Trump’s new proclamation “in the next 24 or 48 hours.” Ensign said he didn’t know. He asked for time to find out. The ACLU warned that planes were apparently about to depart. Boasberg gave Ensign about 40 minutes to find out and recesses the hearing at 5:22 pm.

5:26 p.m.: An airplane with the tail number N278GX, believed by activists to be carrying deportees, left Harlingen, Texas, near the border with Mexico, according to the flight tracking website FlightAware.

5:45 p.m.: A second plane, with the tail number N837VA and believed by activists to be carrying deportees, departed Harlingen.

About 5:55 p.m.: Boasberg reconvened the hearing. Ensign said he still had no specifics. The ACLU again warned that planes were leaving. Boasberg said he had to issue a new order to avoid anyone being immediately deported.

Around 6:45 p.m.: Boasberg told Ensign: “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.” The judge verbally issued his order, which stands for 14 days, and noted that immigrants protected by it will remain in U.S. custody.

7:26 p.m.: Boasberg’s written order, memorializing his oral order, was released. 

7:36 p.m.: The plane with the tail number N278GX landed in Honduras.

7:37 p.m.: A plane with the tail number N630VA, believed by activists to be carrying deportees, departed Harlingen. Government lawyers later say this plane held no one deported under the newly invoked law.

8:02 p.m. The plane with the tail number N837VA landed in El Salvador.

9:46 p.m.: The plane with the tail number N630VA arrived in Honduras.

These planes would later leave Honduras and proceed to their final destination in El Salvador where the 230+ men would be held in captivity. El Salvador would receive a gratuity of $6 million from us.

On Monday, March 17, 5 p.m.: A hearing began over what Boasberg has called the “possible defiance” of his court order. Government lawyers tell Boasberg that his verbal directions did not count, only his written order needed to be followed, that it couldn’t apply to flights outside the U.S. and that they could not answer his questions about the trips due to national security issues. Boasberg called the arguments “one heck of a stretch.” ACLU lawyer Lee Gelernt, the lead attorney for the plaintiffs, warned that “I think we’re getting very close” to a constitutional crisis.

Ok, pro tip here. Never, and I mean NEVER, tell a judge to. his. face. that his verbal instructions don’t count. Moreover, the assertion that the Judge’s order, written or oral, were no longer enforceable once the planes crossed into international waters is just ludicrous.

So quick question here. If Trump renamed the Gulf of Mexico the Gulf of America, then are they truly international waters or American waters? It seems they can’t have it both ways.

At the hearing on the 17th, Judge Boasberg asked the government to answer five direct questions relative to the planes transporting the deportees. For three days, the government has hemmed and hawed, juked and jived, and hasn’t answered the Judge’s questions. The judge has extended the deadline for answering, but as of this writing the government has yet to meaningfully respond.

In its latest non-response response, the government claimed that cabinet members were discussing whether to invoke something called the “Safe Secrets Act.” Actually, it’s the Official Secrets Act.

Silly details….

In any event, Judge Boasberg gave the government until March 25 to submit a sworn affidavit signed by a cabinet official showing cause why the government is not responding to the court’s questions. Or they can just answer the judge’s questions and be done with it.  

Meanwhile, Judge Boasberg this afternoon of March 21 will hold another hearing where no doubt the government will continue to juke and jive.

And on next Monday, the court of appeals will hear the government’s motion to stop Boasberg’s inquiry into whether and how the government ignored a court order and gave the judge the finger.

The next day, the government is ordered by Boasberg to submit filings indicating whether the government intents to invoke the state-secrets privilege. Evidently, they’re threatening to play Richard Nixon’s greatest national security hits!

Stay tuned…

But, in support of the ridiculous, ludicrous, amateurish lawyering in the court, were the comments of Attorney General Pam Bondi, Acting ICE Director Tom Homan, Press Secretary Karoline Leavitt, ICE Field Officer Cerna, and the man himself Donald Trump.

Bondi on Fox: “He can’t do it, what he’s done is an intrusion on the president’s authority. You know, this one federal judge again thinks he can control foreign policy for the entire country, and he cannot.”

Homan on Fox: “They’re not gonna stop us. We made a promise to the American people, President Trump has made a promise to the American people, we’re gonna make this country safe again. We’re not stopping. I don’t care what the judges think, I don’t care what the left thinks, we’re coming.”

Leavitt at a press briefing: “I would just like to point out that the judge in this case is essentially trying to say that the president doesn’t have the executive authority to deport foreign terrorists from our American soil. That is an egregious abuse of the bench. The judge does not have that authority. It is the opinion of this White House and this administration, and that’s why we’re fighting this in court.”

Trump on Truth Social: “And it’s very, very clear that this [is] an activist judge who is trying to usurp the president’s authority. Under the Alien Enemies Act, the president has this power, and that’s why this deportation campaign has continued. And this judge, Judge Boasberg, is a Democrat activist.”

And, “This judge, like many of the Crooked Judges' [sic] I am forced to appear before, should be IMPEACHED!"

Finally, ICE Field Officer Cerna, “While it is true that many of the TdA members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

Thanks, Officer Cerna, for confirming what we already knew. It’s clear that Cerna’s favorite book, assuming he’s read an actual book, is Catch 22. Any guesses what Cerna’s favorite Tom Cruise movie is? Where’s a precog when you need one?

UPDATE: Assistant Attorney General Todd Blanche has filed a sworn declaration that attests to Blanche’s firsthand knowledge of the events detailed in the statement submitted by ICE Officer Cerna.

Aside from that, there’s a MAGA Greek Chorus chanting that no one unelected federal judge should be allowed to enjoin a nationwide policy. Question: where was this Chorus during the Biden administration?

Finally, Assistant Chief of Staff Stephen Miller, channeling his inner Joe McCarthy, called Boasberg a “Marxist.” Hey, it worked in the ‘50s!

Here is the rub. No matter the outcome in Boasberg’s court, this administration will have succeeded in undermining the rule of law, not just as it pertains to the operations of institutions, but as it directly impacts the legal rights of all of us.

Here’s the play. Trump has targeted the least sympathetic individuals, criminal gang members, and in acting outside the due process requirements that would normally attended deportation actions, he’s circumvented the law and just rounded people up, detained them without observing the bare minimum of due process rights, put them on planes and flew them away.

In short, he disappeared them.

He also ignored the law, specifically a judge’s order, and did as he pleased. He has refused to answer the judge’s legitimate questions. If the judge backs down, Trump wins. If the judge imposes “consequences,” Trump appeals, hoping for a favorable judgment that would serve as precedent for future actions against Americans.

And if Trump doesn’t receive his desired outcome, he can just ignore any court’s ruling and do as he pleases.

And if you think Trump’s torturing of the Alien Enemies Act is unsettling, wait until he invokes the Insurrection Act and uses it to disappear his political enemies.

Like a group that took power in another country 90 years ago, the strategy is to use the levers of power against those “undesirables” in society. Over time, that governmental power would be turned on anyone, individual or group, that dared to object to let alone oppose, government policies.

In keeping to our implicit cinematic theme, we’ve seen this movie before. And it sucks.

If I’m correct, this is the path to undermining our rule of law, thereby precipitating a constitutional crisis. In 1948, in a case involving the intersection of due process rights with the Alien Enemies Act, in an opinion written by Justice Felix Frankfurter, the Justice adopted this quote in support of his opinion:

 “All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people." (Case of Fries, supra, at p. 836.) quoted in Ludecke v. Watkins 335 U.S. 160, at 172 (1948).

By any objective measure, our current government is lacking persons “of common sense and common honesty.” This leaves only one question about a Constitutional crisis,

Are we there yet?