Trampling over the rule of law is becoming the president’s main move, but there are signs of a social movement to defend these rights that the working class needs, argues John Clarke 

In an article I wrote for Counterfire in February, I considered the degree to which the Trump administration was trying to defeat judicial oversight and how, in the process, it was coming into conflict with judges whose rulings set limits on its decision-making powers. Since that time, the drive towards unchecked executive power has continued unabated and Trump’s authoritarian proclivities are becoming ever clearer. 

An unaccountable executive wing of the state poses a severe threat to the democratic rights that working-class and popular movements must seek to protect. Without any illusions that we can look to the courts to create a just society, Trump’s attempt to shake off judicial overview should be challenged at every turn.  

In his attempt to crush Palestine solidarity, Trump has targeted visa holders and permanent residents in the US, arresting some and threatening many others with deportation. This has involved actions by Trump’s enforcement agents that are of dubious legality. At the same time, his plans for the mass deportation of immigrants have involved flimsy legal pretexts and have put him on a collision course with the courts, as he has relentlessly tried to deny due process to those caught up in his net. 

Dictatorial power 

Trump represents a wing of the ruling establishment in the US that is increasingly frustrated by the constraints of bourgeois democracy and he is determined to create an authority for the presidential edict that moves much closer to dictatorial power. Recently, his ongoing efforts to free himself of accountability have produced some spectacular results. 

In an interview conducted on 4 May, Trump made some quite remarkable comments with regard to the obligations imposed on a US president by the country’s constitution. As Common Dreams explained, Trump would not ‘affirm that the nation’s Constitution affords due process to citizens and noncitizens alike and that he, as president, must uphold that fundamental right.’ In response to this question, he simply declared that, ‘I don’t know, I’m not a lawyer.’ 

When it was pointed out to him that ‘the Fifth Amendment … states that ‘no person shall be … deprived of life, liberty, or property, without due process of law,’ Trump again professed ignorance of the legalities but ‘suggested granting due process to the undocumented immigrants he wants to deport would be too burdensome.’ ‘We’d have to have a million or 2 million or 3 million trials,’ he complained. 

Pressing the matter somewhat, the interviewer asked Trump directly if he is required to ‘uphold the Constitution of the United States as president.’ To this question, he again replied, ‘I don’t know.’ Presumably, if Trump isn’t obliged to uphold the constitution, then he will consider himself free to disregard it as well. His approach is to seek any legal pretext to justify his actions but, when the courts block him, he will continue to try to avoid their restraining hand. 

It has been reported that the Trump administration is ‘examining whether it can label some suspected cartel and gang members inside the U.S. as “enemy combatants” as a possible way to detain them more easily and limit their ability to challenge their imprisonment.’ Trump’s deputy chief of staff, Stephen Miller, ‘appears to want Trump to have the power to declare undocumented immigrants to be terrorists and gang members by fiat; to have the power to absurdly decree them members of a hostile nation’s invading army, again by fiat; and then to have quasi-unlimited power to remove them, unconstrained by any court.’ 

Shortly before this interview, Trump officials precipitated a sharp exchange with the Wisconsin governor, Tony Evers. Evers had issued guidelines for state employees who might deal with federal immigration enforcers. These were quite unremarkable, simply urging employees to ‘stay calm’ and instructing them to ‘ask federal agents for their name and badge, contact an attorney, and decline to answer questions or provide agents access to any documents without a lawyer present.’ 

Yet, Trump’s so-called ‘border czar,’ Tom Homan, responded to this by threatening to have Evers arrested for interfering with immigration enforcement. A host of Republican politicians, predictably joined by Elon Musk, echoed this call and urged the Trump administration to arrest Evers.  

Common Dreams quotes the governor as warning that these ‘threats represent a concerning trajectory in this country. We now have a federal government that will threaten or arrest an elected official—or even everyday American citizens—who have broken no laws, committed no crimes, and done nothing wrong.’ 

Arrested judge 

The arrest of officials who stand in the way of the Trump administration isn’t any fanciful idea. Over 150 retired judges recently signed a letter to Trump’s attorney-general, Pam Bondi, deploring ‘the Trump Administration’s attacks on the judiciary, including its recent arrest of Milwaukee County Circuit Court Judge Hannah Dugan in her courthouse.’ Dugan was taken into custody, on 25 April, over allegations that she assisted someone in her court in escaping arrest by immigration officers. 

Dugan intends to challenge the charges but the letter notes that the arrest took place seven days after the alleged offence occurred and that a summons to appear in court could have been issued. ‘Instead, the United States Department of Justice at your direction decided to create an embarrassing spectacle that included the FBI’s arrest and handcuffing of Judge Dugan and the Director of the FBI, Kash Patel, posting a photo of the perp walk on X’ in violation of established guidelines.  

On the day of the arrest, Bondi ‘called judges “deranged” and said that “[the Administration is] sending a very strong message” and that “we will come after you and we will prosecute you”.’ According to the New Republic, a reporter asked White House press secretary Karoline Leavitt, on 28 April, if the administration would be prepared to arrest more senior judges, including members of the Supreme Court. She replied that ‘anyone who is breaking the law or obstructing federal law enforcement officials from doing their jobs is putting themselves at risk of being prosecuted, absolutely.’ 

Trump officials have suggested that judges that try to thwart their efforts are part of a liberal opposition, abusing their positions to advance a political agenda. However, it is clear that even very conservative judges are being drawn into the conflict with Trump’s lawless course. In early April, two judges, who were appointed by Trump during his first term in office, ruled against his use of the Alien Enemies Act in order to send undocumented immigrants to prison in El Salvador. Since it is clear that this legislation only applies at a time of war, it is hard to see how any minimally competent judge could rule otherwise. 

Obviously, we should be far more outraged at the arbitrary arrest of Palestine solidarity activists than we are at the spectacle of federal judges in handcuffs. The fate of immigrants shipped off to prison in El Salvador is far more concerning than threats issued against Democratic politicians. Still, this conflict within the ruling establishment has massive implications, as Trump and his leading representatives extend the boundaries of the authoritarian drive. 

As significant as these developments are, however, it’s clear that the Trump administration will continue its push against the limits imposed on him by judicial oversight and that it will take more than open letters from indignant judges to stop him. Fortunately, a mobilised resistance to Trump is emerging, as his trade war creates economic dislocation and his racist deportations and brutal austerity measures generate widespread outrage. 

On May Day, a wave of ‘50501’ (50 protests, 50 states, one day) took place across the US. Whatever their limitations, these actions are an indication of the powerful mass movement of resistance that Trump will generate. A little more than 100 days into his term of office, he is already hugely unpopular, as the polls are indicating. A powerful working-class challenge to his reactionary and authoritarian administration is entirely possible and absolutely necessary.