The rule of law under siege

The rule of law stands as a cornerstone of American democracy, ensuring that all individuals, including government officials, are subject to the law’s authority. However, since President Donald Trump’s inauguration in January 2025, there have been significant concerns regarding executive overreach and challenges to judicial independence. Specific actions taken by the administration have raised alarms about the erosion of constitutional checks and balances.

Defying judicial orders

The most glaring example of executive defiance occurred when the Supreme Court unanimously ordered the Trump administration to facilitate the return of a Salvadoran national admittedly deported by mistake to a dangerous prison in El Salvador. Despite this directive, the administration has refused to comply, citing limitations in foreign affairs and El Salvador’s control over the individual. In an outright snub to the court, the presidents of both nations openly derided the court’s order, mocking the victim while alleging jurisdictional limitations on the court’s authority. Concerned experts have emphasized that such defiance undermines the judiciary’s authority and sets a dangerous precedent for future executive actions. There have been other not-so-subtle hypothetical questions raised by the president concerning the “need” to follow the court’s directives. Never before has there been questions raised concerning the court’s authority and its authority.

The Fourth Circuit Court of Appeals, in a unanimous three-judge panel decision released just last week in an opinion authored by Judge J. Harvie Wilkinson III (a Reagan appointee), rejected the administration’s effort to block a Maryland district court’s order that commanded it to facilitate the return of Kilmar Armando Abrego Garcia to the United States. The Fourth Circuit plainly rejected the administration’s theory that it had a “right to stash away residents of this country in foreign prisons without the semblance of due process.” The government’s actions stand in contrast to a 2019 immigration judge’s ruling that Garcia was authorized to lawfully remain in the United States. By that order, Garcia was not to be deported to El Salvador or anywhere else. The Fourth Circuit paraphrased the administration’s position, stating “the government claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that all Americans far removed from courthouses still hold dear.” The court continues to call for due process.

Similarly last week, U.S. District Judge James Boasberg found probable cause to hold the administration in contempt for ignoring an order to halt deportation flights to El Salvador. These flights were alleged to be deporting members of the Tren de Aragua gang. The courts have repeatedly stated that these deportees must be given notice of the charges and the right to defend themselves, including the right to seek habeas relief (where they can seek release or relief from the court).

Targeting legal professionals

The administration has taken obvious actions to intimidate legal professionals who challenge its policies and the president himself. Executive orders have penalized law firms connected to investigations or legal actions against him. Actions include excluding firms from government contracts and revoking lawyers’ security clearances. Former solicitors general from both parties’ administrations publicly opposed these orders, describing them as an unprecedented threat to the rule of law. Legal challenges have been mounted against these actions, with some firms obtaining temporary restraining orders on the sanctions imposed upon them.

Expanding presidential power

The Trump administration has also pursued legal avenues to expand presidential authority. A key case currently before the Supreme Court, Trump v. Wilcox, centers on the “unitary executive theory,” which posits that all executive authority resides solely with the president. If the court rules in favor of this interpretation, it could strip federal agencies like the Federal Reserve and the Merit Systems Protection Board of their independence, enabling presidents to remove agency officials at will. Such a decision could significantly alter the balance of power within the federal government and diminish institutional safeguards.

Not to be ignored are the continuing arrests and midnight transfers of legal permanent residents (green card holders) to jurisdictions outside of their residential areas (known as forum shopping). The administration’s repeated attacks on constitutionally protected free speech focused on pro-Palestinian advocacy merits special attention. For the first time in our history, a group is being uniquely targeted specifically and simply for exercising their constitutionally protected rights.  They have committed no crimes, have not been accused of having committed any, and are now being persecuted for having raised their voices in favor of Palestinian human and political rights. Student visas are being revoked without reason or notice. Last week, international students filed suit to stop these revocations. The courts have already sided with one student whose visa was revoked effective two weeks prior to his scheduled graduation date. Significantly, universities have faced blatant financial attack, with Harvard University refusing to bow to government pressure and currently standing to forfeit $2 billion in grant resources.

Erosion of constitutional norms

Beyond specific legal challenges, the administration’s broader actions have raised concerns about the erosion of constitutional norms. The dismissal of over 900 federal prosecutors and the forced resignation of senior Justice Department officials have drawn comparisons to the 1973 Saturday Night Massacre, when President Richard Nixon ordered the firing of the special prosecutor investigating Watergate. Legal scholars have described the current situation as “the most dire crisis” faced by the Justice Department in modern times, highlighting the politicization of law enforcement and the undermining of impartial justice.

There is a concerted effort to concentrate power within the executive branch and diminish the role of the judiciary. These developments pose significant challenges to the rule of law and the constitutional framework designed to maintain a balance of power among the branches of government.

Last month, the Monroe County Bar Association joined more than 50 bar associations nationwide in signing a statement issued by the American Bar Association reaffirming unwavering support for the rule of law.

As legal battles continue and public scrutiny intensifies, the future of American democracy may hinge on the resilience of its institutions in the face of executive overreach.

Sareer A. Fazili is president of the Monroe County Bar Association.

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