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Trump’s War on the Rule of Law Is Reaching the Breaking Point

He keeps losing in the courts, yet keeps pushing even more extreme immigration policies. Something's got to give.

Ethan Miller/Getty Images

There’s a disturbing cycle to Donald Trump’s war on immigrants. It starts with the president’s demand for harsher policies on the southern border, no matter how legally or morally dubious they may be. His subordinates have two options: to do what he says, or try to change his mind. If the former, the courts usually intervene to stop the policy, and Trump only gets more enraged, more extreme. If the latter—well, Trump only gets more enraged, more extreme.

Over the weekend, Trump ousted Homeland Security Secretary Kirstjen Nielsen, who was hardly a disloyal cabinet member. She agreed to put traumatized migrant children in cages last year and defended Trump’s “zero tolerance” border policy to no end. But in recent weeks, she reportedly resisted Trump’s orders for more dramatic crackdowns. He then purged most of the department’s upper ranks on Monday in a bid to replace the current slate of hardliners with more pliable figures.

When Trump does find someone to carry out his policies, though, it only extends his unprecedented losing streak in the courts. Last month, The Washington Post tabulated 63 different cases where federal judges ruled against the administration. Trump sometimes wins on appeal, as he did with the Muslim travel ban last summer, but judges have halted many of his border-related efforts. On Monday night, a federal judge in California blocked a policy implemented by Nielsen last December to send asylum seekers to Mexico while their legal proceedings in the U.S. unfolded.

Those defeats, in turn, only spur Trump to take more aggressive steps in the future. According to The New York Times, Trump wants to restart family separation, impose even more barriers to asylum claims, build the wall more quickly, and revoke birthright citizenship by executive order. And the cycle repeats itself.

Something’s got to give. The president isn’t likely to abandon his Ahab-like obsession with border security, and the courts aren’t likely to start ignoring his contortions of federal immigration law. As the 2020 election draws closer, and Trump’s need to inflame his supporters grows more urgent, the risk only grows that he’ll start ignoring the rule of law altogether to achieve his unattainable goals.


Trump himself has already raised the possibility of flouting the courts. Last week, he traveled to Calexico, California, to highlight ongoing construction of his border barrier. “We’re full, our system’s full, our country’s full—can’t come in!” he told reporters. In private conversations with Border Patrol agents, the president allegedly took that message a step further: CNN’s Jake Tapper, citing two unnamed sources, reported that Trump urged the agents not to let migrants in the country and to ignore court orders to keep them out: “Tell them we don’t have the capacity, he said. If judges give you trouble, say, ‘Sorry, judge, I can’t do it. We don’t have the room.’”

Trump’s contempt for the judiciary and the law run deep. He has complained that a federal judge couldn’t oversee the Trump University lawsuits because he was “a Mexican,” asked the FBI director to go easy on a political ally and then fired him to halt the Russia investigation, and dangled pardons to encourage his former campaign staffers not to cooperate with special counsel Robert Mueller.

These were all acts of desperation, as are Trump’s latest slate of potential border policies. CNN reported on Monday that one day last month, he ordered Nielsen to close the southern ports of entry without warning, a move that could easily send the U.S. economy into a recession. He later threatened publicly to do so, then failed to follow through on it. I noted last week that Trump’s authority to close lawful ports of entry along the border is legally dubious at best. Congress has given the executive branch wide discretion on many immigration related matters, but there are still many areas where the letter of the law stands in Trump’s way. And he knows it.

“We have the worst laws of any country in the world, whether it’s catch-and-release, or any one of them, I could name any of them,” he complained to reporters on Tuesday. “If you’ve ever heard of catch-and-release, chain migration, visa lottery. You have to fix the asylum situation, it’s ridiculous.” Congress disagrees with that assessment. Even when Republicans controlled both chambers, lawmakers declared Trump’s effort to rewrite federal immigration law as dead on arrival. The American public also doesn’t share his views: Support for higher levels of immigration have risen since he took office.

Trump is well aware he’s already lost most Americans. He also knows that his only hope for political survival are the anti-immigration supporters who turned out for him in 2016 and largely have stuck with him. That may be why his latest immigration demands read like a love letter to them (though he has denied that family separation is on the table). Each policy would face an uphill battle in the courts. His birthright citizenship proposal is especially egregious—not just unconstitutional, but fascist.

Trump’s disregard for basic legal practices isn’t limited to immigration matters, of course, and the result is that he usually loses in court. My colleague Emily Atkin noted last summer that former EPA Administrator Scott Pruitt’s campaigns to halt or roll back environmental regulations often ran aground when they came under judicial scrutiny. New York University’s Institute for Public Integrity, which tracks the Trump administration’s record in defending deregulatory moves before the judiciary, found that the government has won less than 6 percent of the time.

“We’re bucking a court system that never, ever rules for us, and we’re bucking really bad things in Congress with the Democrats who aren’t willing to act,” Trump said on Tuesday. “They want open borders, that means they want to have crime [and] drugs pouring into our country. They don’t want to act. We have to close up the borders. We’re doing it. I could do it much faster if they would act.”

Don’t doubt that Trump will try to do it. During the closing stages of last year’s midterms, Trump doubled down on measures to satiate his political base. He sent thousands of troops to the border, allegedly to protect the U.S. from a migrant caravan of desperate refugees fleeing violence in Central America, and first floated the idea of revoking birthright citizenship. And Trump wasn’t even on the ballot. As he fights for his political life over the next 18 months, the risk of even more drastic steps will rise. There’s no telling what the consequences will be for the American rule of law, and for the immigrants whom it’s supposed to protect.