Americans should beware of emergencies—real and imagined. All the famous dictators accumulated their power during so-called “emergencies.” So far, President Donald Trump has invented a bunch of bogus ones and Congress almost opened the door to a real one when Democrats contemplated allowing a government shutdown last week.
Here we have a president trying to shut down the government, and the Democrats almost helped him do it. With government funding cut off, Trump could have furloughed thousands of federal employees. It would have presented him the perfect opportunity in the name of an emergency to cut off any financial spigot that didn’t tickle his fancy or finance his family affairs.
Yes, Congress needs to fight Trump vigorously—but not by committing suicide. We should thank Senate Minority Leader Chuck Schumer, for realizing that a Congress that won’t act won’t endure. Trump would gladly assume its powers and use them to allow his capricious, kleptocratic, calliope to continue keening—ever more menacingly for the world.
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The near government shutdown is one real emergency averted. Now, the courts should force Trump to face the music about the bogus ones. The courts should expose his phony claim of an “invasion” by “terrorist” drug-peddling foot soldiers of the Venezuelan government. Specifically, they can stop Trump from using the Alien Enemies Act, which allows enemy aliens to be expelled from the United States without hearings during invasions.
But why should we give drug-peddling illegal aliens hearings? That should be obvious. It’s to be sure they really are drug-peddling illegal aliens operating, as Trump claims, as a Venezuelan invasion force. It’s to prevent abuse. If Trump has unchecked power to deport anyone he tags as a “drug-peddling terrorist invader” do you seriously think he will do it honestly? Shouldn’t it occur to you that this would give him the power to attach the same tag to American citizens he doesn’t like?
And could you possibly think he wouldn’t do a thing like that? Are you kidding?! Where have you been the last few months?! Of course, he would do exactly that—if there was nothing to stop him.
But fortunately, there is. It’s the law, and one court has already ordered a halt to Trump’s “terrorist” transgressions. The Supreme Court declared many years ago that, when the president invokes the Alien Enemy Act, the courts have the duty for each person rounded up by the president to “ascertain the existence of a state of war and whether he is an alien enemy.” This is the promise of our single most important safeguard of individual liberty—the writ of habeas corpus—the right of any person, citizen or not, to challenge in court their imprisonment by the government.
But, if Trump has his way, habeas corpus itself might be in jeopardy. The Constitution provides that the writ may be suspended in time of “war.” If Trump gets away with defining “war” as whatever he wants it to be, the writ could be in danger. Yes, the Supreme Court told Abraham Lincoln that only Congress could suspend it, but, for a time Lincoln, ignored this requirement—repenting later. Is Trump revoking the writ now? He just ignored a court order to turn back a planeload of tagged “terrorists.” They have disappeared behind bars in El Salvador. Do we know they all deserved it?
Did a legal immigrant, Mahmoud Khalil, with a green card deserve it when Trump’s goons picked him up and claimed to revoke his card? The White House praised his arrest, claiming that Khalil handed out Hamas-branded propaganda at Columbia University protests against Israel’s conduct of the war in Gaza. But did he? Days have gone by but, nope, no proof. With this man’s life and free speech in the balance, should we assume Trump’s people wouldn’t lie? Here’s a hint: NO!
Courts are temples of truth. It’s time for them to speak loud and clear against Trump’s lawless reliance on lies about “emergencies,” “invasions,” and “terrorists.” Find the facts. Fine the offenders. Let no one laugh in the face of the law—neither those giving the illegal orders nor those following them. Yes, courts do have tools to secure obedience. They had better use them before they and our Republic are lost.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.