by Heather Cox Richardson, posted to Facebook, March 20, 2025- On the Fox News Channel’s The Five yesterday, the panel of Fox personalities expressed outrage that federal judge James Boasberg had ordered the Trump administration to stop its deportation of migrants based on the 1798 Alien Enemies Act. That act permits the president to arrest and deport citizens of other countries that are at war with the U.S. or invading it. If Trump’s claim that Venezuelan gang members are acting in concert with the Venezuelan government to invade the U.S. stands, it gives the president extraordinary scope to take power over immigration away from Congress by declaring any foreign country is invading the United States and thus making its citizens subject to deportation without going through the normal legal process.
The Fox News Channel hosts were also unhappy that when President Donald Trump called for Boasberg’s impeachment, Chief Justice of the Supreme Court John Roberts issued a relatively mild statement that did not mention the president by name but criticized his call for Boasberg’s impeachment by saying: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
Roberts was nominated for his position by Republican president George W. Bush and was the author of the Donald Trump v. United States decision establishing that a president cannot be prosecuted for crimes committed as part of his official duties, a decision that upended centuries of precedent to allow Trump to avoid criminal prosecution. Roberts can hardly be considered a member of the radical Left.
And yet, on The Five, Greg Gutfeld exploded: “Maybe a guy in a robe in D.C. can follow all the protocols, but Trump is the ‘f-ing’ president of the United States who protects 300 million plus people. He is a leader who does not have the luxury of opening up his little books to read ‘Oh my god, maybe he didn’t do it the right way.’ Roberts, shut the ‘f’ up. This is something that a president has to do. He HAS to do this.”
Gutfeld’s outburst shows just how far today’s right wing has slid toward autocracy. It is a grim marker for our democracy, when a commentator with a wide audience openly calls for the replacement of the rule of law with a dictator.
While Trump apologists are insisting that the men deported to El Salvador are part of a Venezuelan gang that has spread crime across the United States, the family members of some of the individuals who show up on videos of those deported insist their relatives are not gang members.
On Monday, March 17, two days after the men were deported, Acting Field Office Director Robert L. Cerna of Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations added support to their families’ statements when he revealed that “many” of those deported did not have criminal records in the United States, although he insisted that the men were nonetheless associated with the Tren de Aragua (TdA) gang. In a sworn declaration, Cerna told the court that if the deportees lack a criminal record, “that is because they have only been in the United States for a short period of time.”
He went on to say: “The lack of 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.”
That paragraph, from an American official, is worth rereading. It asserts to the court that a person’s lack of criminal record proves that they are more dangerous than people who do have a criminal record because their clean record simply shows that the government lacks a complete profile of their crimes.
Wow.
The United States has laws in place to prosecute criminals whether or not they are citizens and, if they are convicted, to imprison them and then, if they are not citizens, to deport them. This system was in operation long before Donald Trump became president. When people like Gutfield call for the president to act outside that system, they are saying that our legal system is insufficient to handle the conditions in modern America.
But arguing that the rule of law is obsolete is nothing new. It was common among certain circles in late nineteenth- and early twentieth-century America. Then, as now, gangs of Americans insisted that the courts had been corrupted by politicians who let members of certain populations off easily because they wanted their votes, and thus were unleashing criminals on the community.
In 1884, for example, Cincinnati, Ohio, erupted into three days of rioting when William Berner avoided a murder conviction after he and his fellow employee Joseph Palmer beat their employer, stableman William Kirk, strangled him, and threw his body in the woods outside the city. Convicted of manslaughter, Berner was sentenced to twenty years in prison rather than execution.
After the court announced Berner’s sentence, 8,000 of “the wisest and most prudent citizens” of the city, “well-known and respected citizens,” met to call for justice. They swept into the streets, becoming a mob that killed 56 people and injured more than 200 over the next two days. They fought against symbols of government authority, attacking the jail and police officers and burning the courthouse to the ground.
The argument used by the Cincinnati rioters—that a court system corrupted by politicians was letting criminals loose into the community—was the justification for the lynching of Black Americans from the 1890s onward.
Today, the attack on the rule of law is taking a different form. MAGA supporters are calling for the courts to be replaced not with lynching parties but with a dictator, a single man who will override the laws to bring what his supporters consider justice to those they claim are enemies. The end to the due process of the law leads to situations where a government official can argue that the lack of a criminal record for someone perceived to be an enemy of those in power just proves that person is a criminal.
The call to erase the rule of law and institute a dictatorship is more than just an attack on individuals' rights. It is fundamentally an attack on the supreme power of the American people. “We the People of the United States,” our constitution reads, “do ordain and establish this Constitution for the United States of America.” That constitution, which establishes the legislative branch in Article I as the first among equals, sets out a process by which American citizens elect lawmakers who write, debate, and pass the laws under which we live. Under this system, our laws represent the will of the American people.
Trump and today’s MAGA Republicans are proudly ignoring those laws, not only in Trump’s attacks on the judiciary but also in things like the administration’s lie, reported today by Andy Kroll of ProPublica, that nearly 7,000 employees at the Internal Revenue Service were fired for poor performance despite the repeated warnings of a top IRS lawyer that this was “a false statement” that amounted to “fraud” on the courts.
The administration’s attempt to ignore the laws the Constitution charges it with executing amounts to an attack on the right of the American people to establish the rules under which we live.
In a webcast on Monday, Trump ally Steve Bannon defended the deportations even if, as his guest said, they swept in “some gardener or something who’d never been in trouble.” Bannon replied: “ Big deal…. Maybe some people got caught up in it. Who knows?... I think they got everybody who was a bad guy, but guess what? If there's some innocent gardeners in there? Hey, tough break for a swell guy. That's where we stand.”
Throughout our history, that is not where the laws of the United States, or the majority of its people, have stood.
Rod's Comment: Excellent!
Also, I would like to add, that the Alien Enemies Act can only be invoked when we are being invaded or at war. It had previously only been invoked three times and those were in War of 1812, World War I, and World War II. In those instances, Congress had declared war. While Trump and his supporters refer to the massive illegal immigration problem as an "invasion," that does not make it so under the meaning of the Constitution.
A core value of Republicans has been fidelity to the Constitution. It has been liberals who believed in a "living Constitution" and that the interpretation of the Constitution should evolve to reflex current value and meanings. Conservatives believed words had meaning and to understand the Constitution one had to know what was meant by words as they were used at the time they were written into law; thus, Conservatives were "strict constructionist," or "originalist," or "textualist."
Along with norms and values, support for the Constitution is another thing being jettisoned by the modern Republican Party. Also, it should be pointed out that due process is not just for American citizens. Anyone in this country has due process rights. Probably most of those rounded up and deported were very bad people, but without due process, we don't know. If the government can violate the due process rights of gang members today, it may be your due process rights violated tomorrow.
Trump supporters may think they have nothing to worry about since they are not illegal aliens. Someday, Trump will be gone, and a future administration may deem pro-lifers, or White Nationalist, or tax cheats, or Christian nationalist, or some other category of people as not deserving of due process. Once we abandon the rule of law, we are all at risk of being a victim of a tyrannical government.
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