By Nicholas Reed Langen
The President’s defiance of judicial authority has pushed the US into a constitutional crisis. In his op-ed, Nicholas Reed Langen unpacks how his deportation orders, legal battles, and Supreme Court victories have emboldened an authoritarian agenda, testing the limits of US democracy.
Nicholas Reed Langen is a writer and legal commentator. He is editor of the LSE Public Policy Review and writes regularly for a range of publications, including The Justice Gap, Project Syndicate, and the UK Constitutional Law Blog, among others. He obtained his LLM from the University of Toronto. Previously, he worked at the UK Treasury Solicitor’s Department and was a research assistant at the Bingham Centre for the Rule of Law.
America is in a constitutional crisis. On March 15th, President Donald Trump’s administration was ordered to suspend the deportations of over two hundred men accused of being members of a Venezuelan street gang, Tren de Aragua. Trump had sought to deport them under the 1798 Alien Enemies Act, originally enacted to combat espionage, which gives the President broad unilateral authority to deport foreign citizens suspected of being hostile to the United States. However, what it does not do is grant the President the right to do so in violation of due process, the US Constitution, or a court order.
Judge Boasberg was well aware of this when he hauled Department of Justice (DoJ) lawyers before him two days later to account for why the men were no longer in the US. The DoJ’s lawyers were just as aware. They flannelled about how the deportees were beyond American airspace when the order was made and how the order to return them was made verbally, not written down. Sitting in Columbia’s District Court, Judge Boasberg reminded them that equity – the legal principles protecting the men – “does not know geographical borders” and that court orders are binding the moment they are promulgated. It doesn’t matter if they are written down, spoken out loud, or frosted on a cake.
That Trump intended to trample all over the US Constitution, its norms, and its conventions, was obvious from the moment he announced his intention to run as the Republican’s presidential candidate for the third successive time. And that he was going to assume office better equipped to do so was just as obvious.
Trump may have spent the four years in the wilderness raging from Truth Social about “Sleepy” Joe Biden’s apparent corruption and his stolen election victory, but his acolytes were busy.
At the Heritage Foundation, a hard-right think tank, “Project 2025” was drawn up to “institutionalize Trumpism.” Premised on the “unitary executive” theory of government that originated during George W. Bush’s presidency and the War on Terror, Project 2025 endorses an absolute conception of presidential power.
It purports that every organ of the executive branch, from the DoJ to the Federal Reserve, answers solely and entirely to the President. Most presidents since Bush have embraced aspects of the unitary executive, but none have adopted it wholesale. However, with Trump, the ascendant authoritarian wing of the Republican Party has found its man.
There was an obvious off-ramp that could have turned America from this totalitarian course. After the US Civil War, the threat posed by populist segregationists and white-supremacists to the security of the nation was all too clear. The second founders’ solution was to insert an insurrection clause into the Fourteenth Amendment. Anyone who “as officer of the United States…engaged in insurrection or rebellion” was barred from holding elected office. This clause, alongside respect for political norms and conventions, meant that for the next 150 years, America managed the peaceful transfer of power. Republican presidents welcomed their Democrat successors into the White House, and vice versa.
On January 6, 2021, Trump changed all that. The culmination of his rage against the “stolen” election was his inciting of supporters to storm the Capitol. This coup may have been bungled, but its intent was clear. Two years later, citizens in Colorado, presciently aware that Trump was not done savaging the US Constitution, challenged his eligibility under the insurrection clause, and the state Supreme Court agreed with them. It concluded that Trump had incited and participated in the insurrection, and that “Colorado’s election code…provides the state with…dominion over the removal of a candidate.” In at least one state, Trump was constitutionally barred from running for President.
All the Supreme Court had to do was uphold the state court’s decision to de facto block Trump’s candidacy. The Colorado court had done the hard work, and with the Supreme Court’s imprimatur, Trump’s autocratic aspirations would have been at an end. Instead, the justices unanimously struck down the state court’s decision. Per curiam, they concluded that no state court had the authority to adjudicate a candidate’s competence to stand in a federal election.
Aided and abetted by the liberal justices, the Supreme Court single-handedly resurrected Trump’s candidacy. Couple this with their decision five months later, in Trump v United States, and the Supreme Court justices not only paved the way for Trump to return to the White House but handed him the artillery primed to destroy the American constitutional state.
American law now mandates that any action taken within a President’s “conclusive and preclusive constitutional authority” is “absolutely” immune from criminal prosecution during and after his time in office. If he acts under the presidential seal, his actions are inviolable by the criminal courts.
Trump may not have absorbed much of America’s constitutional history, but he has absorbed this. His first act was to pardon the January 6 rioters, proclaiming them “patriots.” Not only was Trump safe from criminal prosecution, but so long as he remained in the White House, he was going to make sure his supporters knew they were as well. This done, his “winged monkeys,” with Elon Musk as the Monkey King, started their rampage through the bureaucratic state.
The Department of Governmental Efficiency (DOGE) have dismissed vital federal employees, shuttered USAID, and stamped all over social security. Challenges to DOGE’s legality in federal court have been defended by lawyers willing to bluster, to prevaricate, and to deceive, pretending that Musk is merely some lickspittle adviser even as he storms government departments, leads Cabinet meetings and deploys the Nazi salute. Both he and Trump are operating on the principle of moving fast and breaking things, safe in the knowledge that by the time a court issues a definitive order to stop, it will be too little, too late.
In the case of USAID, his point has been well proven, as with the Venezuelan deportees. Preliminary cases like these have been purposefully chosen to exploit the fact that Americans presumptively resent their wealth going to fund “bomb-making condoms” in Gaza and that few are willing to advocate for the rights of gang members to remain stateside. The fact that USAID is not busy helping members of Hamas to get laid is left unsaid, as is the fact that law-abiding dark-skinned men are being labelled violent criminals and rendered off the back of football club tattoos. Details like these are just for the political nerds and the freaks who read beyond the headline.
Regardless of whether Judge Boasberg ever sanctions the lawyers who have dithered and deceived before him or holds the US government in contempt, the damage is done. The deported Venezuelans will never find themselves being chartered back to US soil. Trump has tested the water with these cases and found the temperature just right.
America is speeding through its constitutional crisis and is approaching constitutional collapse.
Most of the country seems to be looking to the Supreme Court to deliver them from autocracy. But any faith is not so much misguided as it is deluded. The Supreme Court has always been a small-p political institution, and after Trump’s last term, it started to become political with a capital P. Justice Samuel Alito was embroiled in a scandal last summer for flying pro-Trump flags from his Washington home, while Justice Clarence Thomas is on the donee-list of billionaire MAGA-donors and is married to Ginni Thomas, a “stop the steal” Trumpian activist. While Chief Justice Roberts and Justice Coney Barrett may now regret lending their votes to the Trumpian cause, with Roberts visibly uncomfortable as Trump told him he was “very grateful” and “wouldn’t forget it” at the conclusion of his Congressional address last month, their institutional pride, if it comes, may prove too little, too late.
Should the two conservative institutionalists align themselves with the liberals and enable the Supreme Court to intervene, this would only be effective if Trump abides by the ruling, and if he does not relish the opportunity to further remake the Court in his own image.
Nothing is stopping him from doing what President Roosevelt did in the 1930s–threatening to pack a court that was standing in the way of his political agenda.
To this end, the process of degrading the judiciary has already begun. Trump has threatened Judge Boasberg with impeachment (eliciting a rare statement of rebuke from the Chief Justice), and the Vice President, JD Vance, has been questioning why “unelected” judges have the right to frustrate the “will of the people.”
Cautionary examples have abounded in recent decades as to how authoritarians can seize democratic states. Orbán has done so in Hungary, Erdogan has absolute control of Turkey, and in Israel, Netanyahu has an ever-tighter hold on power. Italy, often a forerunner of global constitutional shifts, has also elected a proto-fascist government prone to defying Court orders. No Western power has taken meaningful steps to check the rise of authoritarian rule. Hungary remains a full member of the EU and Israel is being defended by a Western alliance. Meloni is visited by heads of government keen to learn from her efforts at deterring and detaining migrants and asylum seekers. Erdogan is needed onside to help deter Russia in Ukraine.
Now authoritarianism has come to America, it may be too late for the democratic order that has governed the world for the last hundred years.
Where America leads, other countries follow.
Authoritarian insurgencies in France and in Germany will suddenly find themselves legitimized by the supposed leader of the free world. What was beyond the pale will become part of the settlement. America’s democracy might not be in crisis. It might be gone.
