On March 15, the Trump administration deported over 200 Venezuelans to a notoriously violent prison in El Salvador. Trump has claimed that the Alien Enemies Act of 1789, which allows deportation of citizens of a nation at war with the United States, gives him that unilateral power and that the U.S. today is at war with (you might have missed this — I did) Venezuela.

In the 227 years since its passage this law has been invoked exactly three times: during the War of 1812, World War I, and World War II. As for today’s alleged war with Venezuela, Trump asserts that the individuals deported belong to the Tren de Aragua gang and that the gang somehow is in cahoots with the Venezuelan government.

Trump further insists that under this law no one has any right to due process, no right to contest his decision and no right to question the basis for it.

Notwithstanding that position, while the plane was on its way to El Salvador, Federal District Court Judge James Boasberg ordered the flights to turn around and bring the deportees back. The Trump administration ignored the Court’s order and appealed to the D.C Circuit Court of Appeals. That court affirmed the injunction, 2-1. Trump immediately filed an emergency appeal at the Supreme Court.

That appeal is grounded in sophistry because the 1798 law simply does not apply. It also is shrouded in secrecy because Trump insists that he alone gets to decide who will be a target of that law. In addition, because of national security concerns, he need not disclose the basis for his decision to anyone or any court.

In this case, titled J.G.G. v. Trump, more than immigration is at stake. This case is part of a whole. Trump claims, for example, that the president has unreviewable plenary power to make all decisions for all government agencies including those whose independence is guaranteed by the legislation that established them — the Federal Reserve, OSHA, the EPA, Social Security, the NLRB, for example. This is called the Unitary Executive Theory.

Belief in that theory, combined with a Congress acquiescing to a president exercising its legislative powers and a Supreme Court poised to put its imprimatur on any presidential action, moves the country frighteningly close to a dictatorship.

Distressingly, Chief Justice Roberts, has long endorsed expansive executive power, including the Unitary Executive Theory. This ideological position, which goes back to his time as a lawyer in the Reagan White House, culminated last year in granting Trump immunity for past and future crimes committed as president.

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Another issue undergirding the deportations to El Salvador is this president’s vendetta against non-white and non-Christian immigrants. That consideration brings us to John Roberts’ response to the notorious 1944 case Korematsu v. United States.

In Korematsu, the Supreme Court approved incarcerating, without any charge, trial or process, American citizens of Japanese descent. Their crime was their ethnicity.

Korematsu ranks as one of the Supreme Court’s most racist decisions alongside Dred Scott, the 1857 case that held that enslaved persons were property with no rights, and Plessy v. Ferguson, the 1896 decision that enshrined segregation as a constitutional norm until, in 1954, Brown v. Board of Education overruled it.

Long abjured, Korematsu was not formally overruled for 79 years. In 2018, embedded within the Roberts-authored decision that approved Trump’s Muslim ban was a denunciation of Korematsu. Then in 2023, in the decision that gutted diversity in college admissions, Roberts stated that his earlier condemnation of Korematsu was intended to reverse it.

If this sounds a bit confusing, that’s because it is. In sum, two racist decisions were the vehicle for overruling another one.

Just as racism can be a feature of the Unitary Executive Theory, denial of due process is a hallmark. Due process, the process that is due, includes the right to challenge the government’s case, to present favorable evidence and to receive a decision by an impartial judge.

No one on the plane to El Salvador, including a man named Kilmar Armando Abrego Garcia, had any due process. Mr. Abrego Garcia, originally from El Salvador, lives in Maryland, with his wife and their 5- year-old son, who has disabilities. An earlier court order prohibited Abrego Garcia, an immigrant seeking asylum, from being deported to El Salvador. ICE shipped him there nonetheless, claiming “an administrative error.”

Later, in court, the administration argued that because he was in prison in El Salvador and not in U.S. custody, the federal judge had no jurisdiction to even consider his claims! But on April 4, federal judge Paula Xinis rejected the government’s arguments and ordered Garcia returned to the U.S. by April 7. That decision immediately raised the question, will Trump obey the court order?

In these dark times the lower federal courts have given us glimmers of light. It is far from certain that the Supreme Court will do the same. The case of the Venezuelans deported to El Salvador remains pending at the Supreme Court. Once again, we wait.

Bill Newman is a Northampton-based civil right attorney and co-host of Talk the Talk on WHMP.