Hank Kalet

The federal courts have been doing their job as a bulwark against autocracy, but whether they ultimately will be effective is up to an active resistance because it remains unclear whether the Trump administration will play by the rules.

I know I keep coming back to this fear, but we are at a precipitous moment in which we are watching American institutions one after the other abrogate their responsibilities — either by acquiescing to Trump or pulling punches. Congress is in the hands of Republican sycophants; the Democratic Party suffers from a kind of institutional sclerosis; and the press — because its internal rules hamstring it when dealing with a lying autocrat, allows the administration to keep pressing with its narrative as if it is all normal.

None of this is, though we have seen elements of it in the past, especially in the post-9/11 era. Trump has supersized this, which is why the courts’ response — especially the District Court in D.C. — stand out.

In several opinions regarding the administration’s assault on immigrants —including a temporary stay Sunday, Aug. 31, on the plan to deport children to Guatemala and one on Friday, Aug. 29, blocking the federal government from “fast-tracking” removals — numerous courts have ruled that the administration’s deportation plans violate the due-process rights of immigrants.

As The New York Times reports, U.S. District Judge Jia M. Cobb said “the Trump administration had acted recklessly in a frenzied effort to quickly remove as many people as possible, likely violating due process rights and risking wrongful detentions.” Cobb described the process used by the administration as “skimpy,” and rebuked claims by the administration that “those who entered the country illegally are entitled to no process under the Fifth Amendment, but instead must accept whatever grace Congress affords them.”

“Were that right, not only noncitizens, but everyone would be at risk,” she added. “The government could accuse you of entering unlawfully, relegate you to a bare-bones proceeding where it would ‘prove’ your unlawful entry and then immediately remove you.”

Supporters of President Donald Trump’s assault on immigrants will argue — as the administration does — that they are targeting the worst, the criminals, but were that really true they would not shy away from due process. They would allow all who are detained to have a day in court, to plead their case before a judge, to have an attorney represent them.

The administration, however, has no interest in the courts, except when they rubber-stamp its policies, or a vacancy arises that they can fill with a MAGA sycophant. Judges that rule against the administration are attacked as socialists.

And it has shown a willingness to defy the courts — shipping migrants to El Salvador after a judge issued an injunction, for instance. The 10 children at the center of Sunday’s stay remain in jeopardy — despite judicial order. The Associated Press reports that the administration attempted to circumvent the order. The “U.S. government loaded children onto planes overnight to be sent back to their native Guatemala,” which forced Cobb to expedite a heating and ultimately shut down the flights.

At the same time, Homeland Secretary Kristi Noem told Face The Nation the administration would be expanding immigration efforts in Chicago, part of Trump’s federalizing of local policing. The National Guard and other federal agents are operating in Washington D.C., and Trump sent the feds into Los Angeles in June. He has signaled that Chicago and other cities governed by Democrats were likely to follow.

Noem’s argument is that it is Trump’s “prerogative” to deploy National Guard troops to Chicago as he did in Los Angeles in June in the midst of immigration protests in the California city — that by virtue of being the chief executive, he can do as he wishes, regardless of whether local and state governments are on board.

It is a dangerous and fallacious argument, which she bold-faced with typical Trump-administration hyperbole: “I do know that LA wouldn’t be standing today if President Trump hadn’t taken action,” Noem said. “That city would have burned if left to devices of the mayor and governor of that state.”

The claims are absurd, of course, but this as much about narrative as it is about action. Crime in the major cities has declined, but the constant attacks on D.C. and Chicago make the real problem seem that much worse. Even Democrats are telling pollsters that, despite the evidence, crime is a problem — especially in large cities. Perceptions matter, and Trump is winning the perception battle.

The willingness of the courts to put a halt to the most egregious offenses can help alter the narrative, but the arguments need to be amplified and simplified, and the courts — who lack any real enforcement power — need help from other civil society institutions and a strong resistance movement. Trump has signaled he has no respect for norms or history, or even democracy.

Hank Kalet is a writer in New Jersey. He teaches journalism at Rutgers University. Email, hankkalet@gmail.com; Instagram, @kaletwrites; Substack, hankkalet.substack.com.