Customs and Border Patrol (CBP) is refusing to comply with not one, but two federal judicial orders. This is not a case of a few rogue border patrol agents. The executive branch is refusing to comply with a federal judicial order. If Congress does nothing to stop this, the U.S. will be in a full-blown Constitutional crisis—and have taken a dangerous step toward authoritarianism.
The executive order curtailing the refugee program and banning travel from seven majority-Muslim countries is likely unconstitutional in itself. But the Constitutional crisis really began on Saturday night, when Judge Leonie Brinkema of the Eastern District of Virginia placed a Temporary Restraining Order on CBP. The order requires CBP to “permit lawyers access to all legal permanent residents being detained at Dulles International Airport.” As of Monday afternoon, lawyers were still unable to access those detained. On Saturday night, Judge Ann Donnelly of the Eastern District of New York enjoined CBP nationally from removing from the U.S. refugees, anyone with legal immigrant and non-immigrant visas, and individuals from the seven countries mentioned in the executive order who are legally authorized to enter. The New York order took the unusual step of asking U.S. Marshals to enforce the order in its very text. As of this writing, CBP does not appear to be complying with this TRO either.
Suspending or violating a constitution, formally or informally, is a favored authoritarian tactic. Perhaps most famously, less than a month into his term as chancellor, Adolf Hitler used the Reichstag Fire Decree of 1933 to suspend many constitutional protections on civil rights. From there, he effectively rendered the Weimar constitution a dead letter and consolidated his power. Augusto Pinochet suspended the Chilean Constitution early into his military rule. When the Egyptian military ousted President Morsi in 2013, suspending the constitution was among its first acts. And the list goes on. Authoritarians often justify constitutional suspensions on emergency grounds, such as keeping public order or protecting the nation from a threat. President Trump’s continued assertions that his executive order is keeping Americans safe from terror bears the same hallmark. Congress and the American people—Trump’s supporters included—would not stand for him formally suspending the Constitution. Right now, however, Congress and the American people are standing idly by while the executive branch violates it—which amounts to almost same thing. It’s not enough to protest the executive order. We must also protest the executive’s breaking the rule of law.
The judicial and legislative branches—and the American people—must do more to stop a full-blown Constitutional crisis before it occurs. First, the judiciary needs to defend itself, with the help of litigants. The New York court must be more aggressive about ordering U.S. marshals to enforce its order. Plaintiffs in the Virginia case should immediately file a status of compliance motion to ask the court to send U.S. marshals to enforce the order at Dulles. Plaintiffs have filed a new lawsuit, but it would be a public disservice to abandon the old one. Plaintiffs should keep filing cases challenging the executive order, especially now that the Justice Department is refusing to enforce it. The Justice Department’s position is, quite literally, likely to change overnight. Plaintiffs must also keep pushing to make sure court orders are enforced, and vocalize the implications when they are not.
Second, Congress must act to make the executive branch comply with the judicial order. Some courageous representatives are already speaking out. Senators Cory Booker and Representative Don Beyer have visited Dulles and called CBP’s non-compliance a constitutional violation. Senators Tammy Duckworth and Dick Durban have called for the Department of Homeland Security to investigate CBP’s non-compliance with the court orders. This is a good start, but not enough. Secretary Kelly’s boss claims he is happy about how the order is going. He has not commented on CBP’s refusal to comply with the orders. His statement supporting entry for Legal Permanent Residents (LPRs) did not clarify that they should have access to lawyers. To force DHS’s hand, the Senate Committee on Homeland Security and Governmental Affairs (of which Senators John McCain and Kamala Harris, who have criticized the executive order, are members) and the House Committee on Homeland Security should demand that Secretary Kelly testify on why CBP is not complying with the judicial order. Failing this, Congress should launch an independent investigation into CBP’s non-compliance. Constituents should call their representatives and ask them to make Secretary Kelly testify, pressure DHS to comply with the court orders, and speak out against the Trump Administration’s violation of the Constitution and rule of law.
The executive order has given rise to an even bigger Constitutional problem. When the executive branch violates a judicial order, the very premise of American government is at risk. Authoritarians often consolidate power because the public doesn’t act in time to stop them. If we don’t act now, it could happen here.
Jill Goldenziel is Associate Professor at Marine Corps University-Command and Staff College. Her views are her own and do not represent those of her University or (rather obviously, in this case) any other branch of the US Government.
