The Sunday News
If you’re looking for a construction law post, this isn’t it.
This Sunday morning I woke up to the news that the Trump administration deported over 200 suspected Venezuelan gang members to El Salvador, despite a federal judge’s order temporarily barring the deportations. This may seem like just another news article in the seemingly nonstop deluge of new articles since the new administration took office. As a lawyer, and as an American, I think this is different.
Here are the facts as we know it:
- The Proclamation: On Saturday, March 15, 2025, President Trump issued a proclamation, under the “laws of the United States of America, including the Alien Enemies Act, 50 U.S.C. 21 et seq.,” directing the U.S. Attorney General and the Secretary of Homeland Security to “apprehend, restrain, secure, and remove” suspected members of the Venezuelan gang Tren De Aragua. The proclamation states that members of Tren de Aragua “have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States” including “murders, kidnappings, extortions, and human, drug and weapons trafficking.”
- The Lawsuit: Later that same day, a federal civil lawsuit was filed by the American Civil Liberties Union, Democracy Forward and the ACLU of the District of Columbia on behalf of five Venezuelan men in immigration custody in Texas and New York, arguing that President Trump does not have the authority to deport the suspected Venezuelan gang members under the Alien Enemies Act. The Alien Enemies Act, which was enacted in 1798, has only been used on three occasions, during the War of 1812 against British nationals, during WWI against nationals of the Central Powers, and during WWII to intern Japanese, Italian and German nationals living in the US, and, according to the lawsuit, has only been used when the United States was in an “actual or imminent war” with a “foreign nation or government,” although the Act can also be invoked when there has been an “invasion or predatory incursion” by a “foreign nation or government.”
- The Order: That evening, James Boasberg, Chief Justice of the D.C. District Court, granted a temporary restraining order barring the Trump administration from deporting the five individuals. The order was later expanded to include all immigrants sought to be deported under the Alien Enemies Act. Following the hearing, the U.S. government filed an appeal of the decision.
- The Flight: According to reports, the hearing which resulted in the temporary restraining order began at 5:00 p.m. on Saturday. During the hearing, Judge Boasberg asked the U.S. government attorneys whether any deportations were imminent in the next 24-48 hours, to which they responded that they could neither “confirm or contest” whether any deportations were imminent. Judge Boasberg then ordered a break in the hearing until 6:00 p.m. for the government attorneys to determine if any deportations were imminent. At 5:45 p.m. a flight with the suspected gang members took off from Harlingen, TX for San Salvador, El Salvador. At 6:52 p.m., after learning of the flight, Judge Boasberg ordered the U.S. Government to turn around any planes carrying immigrants being deported under the Enemy Aliens Act. At 7:02 p.m. the flight arrived in San Salvador, El Salvador.
As of the time this post was written there has been no official response from the U.S. Government. However, Nayib Bukele, El Salvador’s President – who is being paid $6 million by the U.S. to keep the suspected gang members in jail for one year – in a post regarding the court’s order on X today (Sunday), wrote “Oopsie . . . Too late.“
For some, this might seem like another news item that will just as quickly be replaced by another. It likely will be. For others, the details may read a bit like a reality tv show or opening to a B-rated political thriller. And they do. And for others this post may read like yet another woke, anti-Trump diatribe. It’s not.
It’s an anti “anyone-who-would-do-this-kind-of-thing” post. And as Americans I believe we shouldn’t dismiss it or treat it lightly.
I believe there is a reason why this occurred during the weekend when the regular news cycle was sleeping. I believe there is a reason why this involves a relatively small number of undocumented immigrants among the estimated 11 million undocumented immigrants living in the United States. And I believe there is a reason why this involves suspected members of a foreign gang.
This wasn’t happenstance. This was vetted to yield the greatest degree of indifference possible, and for those who might have taken notice, well they’re pro-cartel, violence supporting, near-do-wells anyway.
But we should care. We should care deeply. Because I believe it marks the first shot in a war that may potentially tear this country apart at the seams. We’ve all read (and seen) the White House meeting between Ukrainian President Volodymyr Zelensky, President Trump, and Vice President Vance. We’ve read about the firings by DOGE. And we’re seeing the impacts of President Trump’s tariffs. All of these things involve important public policy issues. What occurred today, however, is fundamentally different. It involves the potential unraveling of the very fabric of our country: The rule of law.
John Adams is often paraphrased as saying that we are “a country of laws, not kings” (Adams actually said we are “a government of laws, and not men” and, apparently, he took it from a guy named James Harrington). Checks and balances, as we all learned in school, is the means by which we secure the sanctity of the rule of law: Congress enacts the laws, the Executive branch applies the laws, and the Judicial branch interprets those laws. Harrington, who I need to read more about, used the metaphor “two girls cutting a cake. One cuts and the other chooses, making a fair division likely.”
As Americans we take this truth about our republic to be, well, “self evident,” yet we rarely take into consideration its fragility. It’s fragile because its entire underpinning (like the paper we call money) is a social construct – Thomas Hobbe’s so-called “social contract” – that depends on everyone agreeing on the rules we will live by. Once someone decides not to play by those rules, in particular those with immense power (i.e., the President), the social contract is broken and, as Hobbe’s said, we revert back to a “state of nature” which for most tends to be “solitary, poor, nasty, brutish and short.”
Let me give you an example. I was once involved in a real estate case involving a partnership. Like many partnerships there was the “money” guy and the “sweat-equity” guy. The partners got along swell at first. Then they didn’t. What they were fighting about isn’t important. What is more important, is that the sweat-equity guy, and his counsel at the time, tried to take every advantage they could and their overall strategy seemed to simply be fight, fight, fight. They refused to respond to discovery. They filed numerous motions. They made arguments that didn’t comport with the law or accurately represent the facts.
In short, it was a hard-fought case. But many cases are like that. What made this case unusual is that while the case was pending, the sweat-equity guy’s attorney withdrew as counsel, leaving the sweat-equity guy to represent himself personally or in pro per. This is when things got really wild. The sweat-equity guy filed pleadings that weren’t permitted. His pleadings were nearly impossible to understand. And, as a result, he lost. Again and again.
This would seem to bode well for my client. It didn’t. He never complied with a single court order. The court would order him to produce documents. He didn’t. The court would order him to allow access to the property. He would lock it up. He was ordered to pay monetary sanctions by the court. He didn’t pay. Ultimately, I had to ask the court for a bench warrant to ask that he comply with the court’s orders or be taken into custody. Unfortunately, he used a P.O. Box and he had such a common name there was no way to find him. When I complained to the court, the judge basically told me, “What would you have me do, go out and track down the guy and have him arrested personally?”
It was then that it dawned on me. The rule of law is fragile. It depends on everyone playing by the same rules, win, lose, or draw. And if someone doesn’t, well, it’s Hobbe’s “state of nature” or anarchy, where each person simply does as he likes. And in anarchy, only the strongest get to do as they like, as the rest of us meekly follow along.
Despots do well in these kinds of environments. But as history tells us it’s also why sooner or later, in one way or another, even depots get overthrown, often by a stronger despot although occasionally through revolutions, as our own country’s history has shown. But revolution, which requires the will and coordination of many, is the exception rather than the rule. It also takes a long time. Which is why it took our country’s forbearers nearly 200 years before they were pissed off enough and organized enough to start the American Revolution.
Whether this latest incident was just an “Oopsie” is something we’ll have to wait and see. I’m concerned that it isn’t. I’m concerned that it’s a resilience test on our checks and balances along the lines of “you and what army?” If it is, we, and I do mean “we” as an in “us” collectively, will in all likelihood lose. The Judicial branch doesn’t have an effective enforcement arm. It has the U.S. Marshal’s Service but it’s under control of the Department of Justice. Both houses of Congress are currently controlled by the President’s party which he appears to have firm grip over, and even if this wasn’t the case, Congress has no enforcement arm at all.
Battles are sometimes lost without a shot being fired, and if the new rules are that there aren’t any and this is purely about raw power alone, my fear is that the response by Congress and the Judiciary will be no response at all because they know there’s nothing they can do. If that’s the case, then God help us all.
California Construction Law Blog | Nomos LLP 
3 Responses to “The Sunday News”
Thank you for this. I agree with you in all respects.
Mariah
I read the construction law blog and most times find it helpful. I agree with some parts of this post, but vehemently disagree with what a few federal judges are doing to block the executive branch from carrying out its duties. I believe the attached article sums it up best.
https://www.kunstler.com/p/welcome-to-fafo-land?utm_campaign=email-half-post&r=5dgyq6&utm_source=substack&utm_medium=email
Kudos for speaking out and for your eloquence. This is simply terrifying.
Clare M. Gibson
Law Office of Clare M. Gibson
http://www.claregibsonlaw.com
clare@claregibsonlaw.com
510.858.0910
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