“Oopsie … Too late,” President Nayib Bukele of El Salvador wrote on X with a cry-laughing emoji on March 16. Below it was a screenshot of a headline: “Fed judge orders deportation flights carrying alleged gangbangers to return to US, blocks Trump from invoking Alien Enemies Act.”
Despite the court order, federal officials had neither prevented the takeoff of the deportation flight that was still on the ground at the time of the court’s order, nor turned around the two other planes that were already in the air. After news broke that the men were now in El Salvador, imprisoned in the notorious complex known by its Spanish acronym CECOT, Mr. Bukele’s mocking tweet made clear that he considered the deportees beyond the reach of U.S. courts.
The Trump administration has taken a similar position, albeit with fewer emojis. “Federal courts generally have no jurisdiction over the president’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion,” Karoline Leavitt, the White House press secretary, said in a statement on March 17.
Since then, the administration has grown even more defiant. This week, when asked about the case of Kilmar Abrego Garcia, a Salvadoran immigrant and Maryland father of three who was deported from Maryland to CECOT as a result of “administrative error,” Mr. Trump told a reporter that he has the power to free Mr. Abrego Garcia but won’t do so — despite a Supreme Court order to “facilitate” his release.
Those claims, along with the Trump administration’s broadly resistant attitude to court orders, its arrests of foreign students for their political activism and its wide-ranging campaign of retribution and intimidation against law firms and universities, have raised alarms that the country is hurtling into a new era of lawlessness.
But there’s a more precise way to understand the Trump administration’s approach to the law, and its potential dangers: the concept of the “dual state.”
