President Donald Trump took no time to get started on his agenda upon beginning his second term in office. Is his rapid issuance of executive orders and tension with courts more than just a new approach to leading? Is it a sign that a constitutional crisis is brewing?
Jamie Rowen, associate professor of legal studies at UMass Amherst and director of the Center for Justice, Law, and Societies, joined WWL Radio this week to weigh in.
“I think that president Trump is invoking powers that no presidents have ever invoked before. And he’s trying to regulate industries in ways that no president has ever regulated before, and he’s doing those regulations in ways, that directly contradicts the constitution and are absolutely not going to pass judicial scrutiny, but the act of doing that is causing a lot of damage for people,” she said.
As an example, Rowen and Tucker discussed the case of Kilmar Armando Abrego, an immigrant protected from deportation who was erroneously sent back to El Salvador, where he is currently imprisoned. Rowen explained that while the father of three was an undocumented immigrant when he arrived in the U.S., he was not allowed to be removed because his return to El Salvador could result in torture.
Still, U.S. Immigration and Customs Enforcement (ICE) arrested Garcia the government claimed that he was part of a dangerous gang without any evidence. He was sent along with 200 migrants to a prison in El Salvador.
“Because he was the one person who there is a clear record was legally supposed to not be removed, federal courts have said that the executive authority overstepped its powers by making this man essentially disappear into a prison in a foreign country,” said Rowen. “It made it all the way to the Supreme Court and the [court] ordered the Trump administration to facilitate his return.”
This is where questions of constitutionality come in.
“Now what president Trump in his collaboration with the El Salvadorian government said is no, we will not be facilitating his, his return,” Rowen told Tucker. “So, we’ve not really seen a president blatantly say no to the Supreme Court when the Supreme Court is exercising its fundamental right – as it’s a separation of powers issue, the court is able to say that an individual was wrongly detained or in this case deported. And the executive is saying no to the court. That is new.”
She explained that separation of powers in the U.S. has had a complicated history, in part because the constitution doesn’t clarify a lot of the powers that the three different branches – executive, legislative and judicial – have. In this case, the use of the ambiguous word “facilitate” also complicates things.
“I question whether the Supreme Court could really say anything more than that, but it doesn’t really matter what word it used,” Rowen continued. “What matters is that the executive branch isn’t facilitating. It’s not making an attempt and it’s blatantly saying to the court and to the American public: ‘We don’t have to.’”
That’s a particular cause of concern for the professor in regards to the fifth and sixth amendments of the constitution, which protects both citizens and non-citizens “from the federal government unjustly detaining us without due process,” Rowen said. Right now, it might just be about one man sent to El Salvador, but the executive moving in opposition to the amendments is worrisome, she added.
“I think there’s going to have to be sustained pressure on President Trump,” she said. “And for people who care about these issues of due process, remember the Supreme Court found that Abrego Garcia was unlawfully arrested that the government put forward no evidence that he was a member of a gang that they just alleged that he was a member of a gang.”
Previously, Tucker spoke with Andy Smith, director of the University New Hampshire Survey Center, about whether the actions of Trump’s advisor, controversial multibillionaire Elon Musk, was acting in accordance with U.S. law. Smith had concerns about Musk’s adherence to the constitution.
“We’ve got Elon Musk doing a lot of things domestically, which I had some difficulties with on a constitutional level and a contract level,” he told Tucker. Other experts have also discussed concerns about the Trump administrations’ handling of other immigration matters, such as student visas, with Audacy.
Trump has also floated an idea to deport others to El Salvador, per Reuters. When asked by reporters Tuesday if deporting U.S. citizens to Central American countries is in fact legal or if the law would need to be changed to do it, White House Press Secretary Karoline Leavitt said the president is considering it for “Americans who are the most violent, egregious, repeat offenders of crime.”