The state of exception

Jamelle Bouie (gift link) points out that there’s a big difference between the unconstitutional and the anti-constitutional. Unconstitutional actions by a president are illegal acts that are ultimately recognized as illegal, within a system in which everyone continues to play by the same rules, even when they break some of those rules. Even Richard Nixon had to acknowledge in the end that he remained under the jurisdiction of the federal courts and of Congress, which is why he resigned.

Donald Trump is not playing the constitutional law game at all, which is a qualitative difference. You have to go back to Ft. Sumter and Jefferson Davis to find an appropriate analogy.

An anti-constitutional act is one that rejects the basic premises of constitutionalism. It rejects the premise that sovereignty lies with the people, that ours is a government of limited and enumerated powers and that the officers of that government are bound by law. . .

Even more egregious are the president’s efforts to ship allegedly unauthorized immigrants to the Terrorism Confinement Center, a mega-prison in El Salvador, an act welcomed by the country’s own authoritarian president. Over the weekend — falsely claiming wartime conditions — the president invoked the 1798 Alien Enemies Act to deport, without due process, hundreds of people the White House has accused of gang ties and criminal behavior.

There is much to say about the administration’s decision to seemingly ignore a court order to halt or reroute deportation flights for these people and return them to United States. For now, let’s focus on the Justice Department’s initial defense of the president’s order, in which government lawyers argued the following: “Beyond the statute, the President’s inherent Article II authority is plainly violated by the district court’s order. As a function of his inherent Article II authority to protect the nation, the President may determine that [Tren de Aragua, a criminal gang] represents a significant risk to the United States … and that its members should be summarily removed from this country as part of that threat.”

In other words, according to the Justice Department, the president of the United States has an “inherent” power to summarily deport any accused member of Tren de Aragua (and presumably, any foreign national accused of membership in any gang) without so much as a hearing. What’s more, under this logic, the president can then direct his administration to send that person, without due process, to prison in a foreign country.

There’s nothing about any of this that’s necessarily or even coherently limited to foreign nationals. The position of the Trump administration is that, if somebody in ICE decides that you’re a threat to national security, you can be shipped to a hell hole prison in a foreign country with no due process of any kind. And, in classic totalitarian fashion, the absence of any evidence that you are such a threat is just further evidence that you are the kind of terrorist who is especially dangerous, because you’ve successfully hidden all the evidence of your dangerousness to the state.

Think I’m exaggerating?

I prefer my Kafka as abstruse literary metaphor, as opposed to the daily news.

We are sleepwalking into a dictatorship.