Since Donald Trump took the reins of power in January 2017, his ghastly team has been looking for ever more creative ways to make the lives of immigrants and would-be immigrants as miserable as possible. They have sought to use all the powers of the executive branch to limit not just undocumented immigration, but also legal immigration through curtailing the issuing of visas and shuttering overseas visa-processing offices; travel bans targeting people from Muslim-majority countries; ludicrously low caps on the numbers of refugees; and, over the past months, an all-out assault on asylum seekers. The administration has sought to shred Deferred Action for Childhood Arrivals (DACA) protections, which provide undocumented immigrants brought into the country as children some legal protections and the ability to work. It has also shredded Temporary Protected Status (TPS) protections, which give temporary residency rights to immigrants who fled dire conditions in a number of countries in Central America, the Caribbean, Asia and Africa. Meanwhile, the Trump administration has pushed to end the diversity lottery, which allots 50,000 green cards annually to residents of poorer, mainly southern hemisphere countries. And time and again, the administration has referred to immigrants as invaders and purveyors of crime and sickness, using a dehumanizing language reminiscent of other fascist and totalitarian regimes in recent history.
So far, however, they have, albeit reluctantly, just about abided by court rulings. When the courts ordered the ending of family separation policies and the imprisoning of children in cages, the administration complied. When courts ruled DACA had to be continued, Trump fulminated against the judges on Twitter, but at the end of the day, the administration agreed to renew DACA status for the people under its umbrella. TPS recipients are, as a result of court rulings, also not currently being deported en masse.
I fear, however, that we are now in phase two of Trump’s nativist presidency. The purge of the senior Department of Homeland Security ranks, as well as the all-out efforts to politicize the Justice Department and to weaponize its investigative and prosecutorial functions — Trump has demanded political opponents be investigated, has accused many of them of “treason” and has pushed Attorney General William Barr to investigate the FBI for its investigation of the then-candidate’s campaign in 2016 — suggest Trump is intent on pushing up against the limits of the law. Add into the mix the fact that the unrelentingly offensive Trump adviser Stephen Miller now appears to be firmly in charge of the country’s immigration and border enforcement process, and the president’s team is giving every indication of jumping the shark.
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On a daily basis, the administration floats ever more ominous ideas, from shutting the border to ramping up child imprisonment to an executive order against birthright citizenship. Most recently, it has pushed for the denial of bond to asylum seekers who are apprehended outside a formal port of entry into the country. Since asylum cases can take years to process, this proposal essentially envisions locking up tens, if not hundreds of thousands of desperate, destitute people, almost indefinitely. It takes the ethos of indefinite detention of terrorism suspects at Guantánamo Bay and applies it stateside against would-be asylees.
All of these awful proposals are being accompanied by an ever-louder drumbeat of Trump’s tweets against the independent judiciary.
Trump’s throwing of red meat to his base has, in this spring of his discontent, reached a fever pitch. His inflammatory video against Rep. Ilhan Omar — in which he cherry-picked quotes by her to make it seem as if she, as a young Muslim woman, sympathized with the terrorists who attacked the U.S. on September 11, 2001, and juxtaposed her words against visual images of the Twin Towers burning — was straight out of the Nazi propagandist Julius Streicher’s playbook. Substitute the vile anti-Semitic language of Streicher’s Der Stürmer for the vile anti-Muslim rhetoric that Trump is explicitly peddling, and one can see just how low this administration is going.
So why assume that the courts will continue to effectively stanch the democratic bleed? Why assume that when it comes to immigration, and when it comes to the targeting of particular religious and racial groups, Trump will continue to be hemmed in by judicial rulings?
What happens if Trump tries to ramp up the imprisonment of children in cages, the courts block him, and he then orders the bureaucracies — now controlled by acting secretaries appointed personally by him, rather than permanent secretaries who have been confirmed by Congress — to go ahead and imprison more children anyway? What happens if Trump simply fails to abide by court rulings to let asylum seekers into the U.S. rather than bottle them up in camps in Mexico? What happens if the courts block his emergency declaration and refuse to allow the diversion of the $8 billion that he quite simply stole from the public coffers to fund his vanity wall project, and Trump orders the army to go ahead and divert funds to build the wall anyway?
What happens if Trump orders his acting secretary of defense to deploy thousands more active duty military to the border and mandates them – in clear violation of the Posse Comitatus Act – to perform arrests of immigrants? What if the courts try to stand up to him, and he personally orders the military chiefs to go ahead anyway?
What happens if Trump signs an executive order banning birthright citizenship? It’s likely the courts or Congress would immediately try to intervene to protect the Constitution. But what if, at that point, Trump simply demands that the U.S. Citizenship and Immigration Services, with its professional leadership decapitated by the Miller-orchestrated purges, not consider U.S.-born children of immigrants as citizens? What if he insists that it stop issuing them the necessary citizenship documents, and that it no longer respects their citizenship when it comes to arrests and deportations? And what if the bureaucracies are too cowed to disobey?
Unfortunately, these questions are taking on increasing urgency. This month, for example, multiple media organizations reported that Trump told the head of the Customs and Border Protection agency, the man whom he subsequently tasked as acting chief of the Department of Homeland Security, that he would pardon him were he to be sent to jail for throwing asylum seekers back across the border. The promise was shockingly redolent of President Rodrigo Duterte of the Philippines telling police officers that he would pardon them if they were ever convicted of extrajudicial killings in his bloody war against drug users and dealers.
Trump has, from the get-go, considered himself above the law. He is protected by William Barr, an attorney general who fully subscribes to the notion that the president by definition cannot be held accountable for legal violations. And Trump has appointed Supreme Court justices who have espoused absurdly broad notions of executive power.
We have a constitutional system of checks and balances that, at least in part, continues to chug along because all the stakeholders generally agree to abide by those checks and balances. They may test the waters occasionally, seeing what they can get away with, but when faced with court orders and congressional votes against particular policies, presidents and their minions have, historically, pulled back from plunging the country into constitutional crisis and civil conflict.
Trump, by contrast, shows signs that he’s determined to break the Constitution, to smash through checks and balances, and to implement his white nationalist agenda come hell or high water.
I’ll repeat what I’ve said many times these past three years. Temperamentally, Trump is a fascist. That was a controversial statement back in the early days of the Trump candidacy and presidency. These days, it’s a fairly mainstream belief. Aspirationally, he is a dictator. He views the system of checks and balances not as an attribute of democratic governance, but as a personal affront, an obstacle to his ambitions.
So far, the bureaucracies and the courts have held him back just enough to preserve at least the tattered remnants of a constitutional system. So far, Trump has been more of a wannabe-dictator than a true tyrant. That could now be changing.
If Trump believes he, as president, is above the law —if he orders his bureaucrats to violate the law, fires those who refuse to go along, and pardons those yes-men and yes-women who so shamefully carry out his orders — then nothing is left of that system of checks and balances. At that point, we will have fully slid into dictatorship, and Trump’s Führerprinzip — the replacing of loyalty to constitution with loyalty to the person of the leader — will have become the de facto law of the land.