Now it's a Constitutional Crisis

Guest Post by an immigration attorney and student of history on this dangerous moment and the legal framework built to stop it

Publishers Note: This is a guest post by my friend Rick Hein whose law firm focuses on immigration among other specialties in St. Louis. He wrote this for clients and others who had asked his perspective on this moment. He explains the unique nature of the Judicial Branch and the history that led to this moment. I hope you’ll take the time to read and share it.

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You’re witnessing a true constitutional crisis

by Rick Hein

Clients and friends have asked my opinion as an attorney on the events of March 15, 2025 surrounding the "Venezuelan Deportation Flights to El Salvador prisons" which were allegedly full of members of the Venezuelan gang Tren de Aragua; the president’s issuance of the Executive Order invoking the Alien Enemies Act of 1798 to create a rationale for what his Administration was about to do; the emergency court hearing in which Judge Boasberg ordered the flights stopped; the president telling Judge Boasberg he didn’t have to follow the Order to stop the flights and refusing to comply; and the implications of the president’s actions for the survival of the Rule of Law in America and for the continued relevance of the United States Constitution to our way of life.

The best way to understand the unique and extremely serious menace these developments represent to our country’s system of ordered justice, however, is through the lens of history.

The Constitution is the bedrock of it all

We, the People, are the heirs and beneficiaries of the Founders’ and Framers’ lived experience trying to deal with and then rebelling against the tyrant King George, III. The U.S. Constitution is our inheritance from their lived experience. The U.S. Constitution is the perennial fruit of the Founders’ struggle to throw off the shackles of tyranny and of their failed initial attempt at self-government in America under the weak and ineffective Articles of Confederation.

We must not allow our inheritance to be squandered and sacrificed on the altar of obeisance to disorder – or to a disordered president. The alternative is unfathomable.

This, my friends, is the truth: you and I are privileged to be alive right now – at this moment in history – because we are eyewitnesses to whether the American Republic survives Trump’s existential threat to constitutional order in America. Or, conversely, whether it does not. And to whether a different form of government might replace our democratic constitutional republic if the Republic falls.

Whatever new form of government comes about if that happens I am sure will be “great”, “the best anyone has ever had”, “so much better” than the U.S. Constitution, it’ll be the “likes of which no one has ever seen”, “it’ll make so many people so much money”. Believe me, it’ll be “yuge”!! Believe me: let us not permit the hollow puffery of a carnival barking convicted criminal conman to be our country’s undoing.

Ratified in 1788, Mr. Madison’s Constitution embodied America’s endorsement and embrace of the Enlightenment’s philosophy of the natural rights of individual human beings to life, liberty, and property; the prevention of any one branch from gaining dominance through separation of powers and division of government in order to preserve and protect those individual rights; the concept of popular sovereignty; and the crafting of a government designed to reflect the will of its citizens while protecting the rights of the minority. All in service of individual rights.

James Madison, famous individual rights advocate

The Enlightenment was the umbilical cord that nourished our body politic, and the Framers seeded its philosophical DNA throughout our American system of ordered liberty by designing, structuring, and balancing our Constitution specifically to secure the place of the individual above the state – a phenomenon unique in the world.

And with the benefit of this historical perspective, it is clear that Trump is assaulting the judicial branch specifically to upend the Constitutional design, structure, and balance the Framers grafted into the sinew of American Constitutional Order. Clearer yet is that his current actions are merely the continuation of the physical attack on the Constitution of January 6, 2021. Except this time, it’s by his affirmative executive actions (issuing unconstitutional and illegal executive orders) and through his affirmative executive inactions (refusing to obey, follow, or comply with judicial orders).

Each Judge is an equal leaf of the Third Branch

Understanding the power of the judiciary, its nature, how that power is exercised, and its role in protecting individual rights is crucial to understanding why Trump’s attacks constitute an existential threat to the Republic. In 1803, the Supreme Court explicitly recognized its own inherent authority to determine the constitutionality of actions taken by the other branches in its world history precedent setting opinion in Marbury v. Madison.

This was because the Constitution makes the judicial branch a co-equal branch of the federal government and because it was the “Supreme Court”. As far as I can find, the Marbury case was the first time in the history of the world a national Supreme Court explicitly cited the concept of judicial review as a legal basis for its constitutional authority.

Marbury v. Madison put into law and practice the promise and hope of our historic yet adolescent U.S. Constitution – at the time just over 14 years old – to protect our new American Republic. It also established the Constitution as a legal document, and not just a political document. The rights “endowed by their Creator” and granted to individuals – you, me, natural born citizens, naturalized citizens, legal permanent residents, and all persons present in the United States – all are protected by the U.S. Constitution, through each individual judge.

The power of the Third (the judicial) branch of government extends all the way to each of its individual leaves. Each leaf is a single judge, whether trial level, appellate level, or a Supreme Court Justice. In fact, the Constitution is so tilted in favor of the individual that a single judge becomes and acts for the entire Third branch of our democratic constitutional republic: one judge versus one president, both individuals. Indeed, whether the American Republic survives Trump’s attack may come down to the vote of a single Justice of the United States Supreme Court.

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You're paying for the torture of innocents

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In America, an Article III Judge (yes, just a single judge) can block presidents. Indeed, in America, judges are duty bound and required to block presidents by their oath to support the Constitution and faithfully and impartially discharge and perform their duties under the Constitution. This insistence on deferential commitment to the Constitution is vital for our system to function as the Framers designed, especially when a president acts beyond constitutional limits. It is the very essence of judicial checks and balances.

If a judge were NOT able to block a president from acting beyond constitutional limits, then the Constitution would be reduced to nothing but an old, dead piece of paper. It is up to us, the living, to keep the Constitution alive by our actions – or in this case, by a single judge reviewing presidential actions to determine if the Constitution permits or prohibits them.

The problem here is that Trump never let Judge Boasberg get to that point. Trump ignored his Order to pause the flights. Trump denied Judge Boasberg the opportunity to figure out if the Constitution did or did not prohibit Trump’s actions. Trump did what he did because that’s what he wanted to do.

Those who believe a “lowly trial court judge” should not be able to block a president from carrying out presidential directives are suffering from a grave misapprehension of the Constitution, or else they long for something other than the American system because simply stated, that is not how things work in our democratic constitutional republic. That is not how things work in America. That is how things work, however, in a dictatorship.

It was designed to stop dictatorship of any form

When there is conflict between the branches of power in our American system, the checks and balances the Framers designed to protect us mean that no single branch gets to act on its own, thus preserving the status quo. Our democratic constitutional republican form of government is the antithesis of Rule by Only one person, i.e., a king, a dictator, a tyrant, or a usurper of constitutional authority (such as Nicolás Maduro in Venezuela, for example, who not only ignores laws against human rights abuses and the Venezuelan Constitution of 1999, but elections, too. Or, as I clearly see the president himself to be). These are personal dictatorships by definition.

After last year’s Supreme Court opinion in the appropriately styled Trump v. United States case, Trump in essence seeks a personal dictatorship with legal immunity by issuing unconstitutional and illegal executive orders, and by ignoring or otherwise refusing to obey judicial orders.

Our democratic constitutional republican form of government is the antithesis of and the antidote to all forms of authoritarianism: Soviet-style communism; the Cuban-, Venezuelan-, Nicaraguan-, and various other styles of “socialism” in different caffeinated flavors from various regions around the world; and fascism in its various iterations, from Africa and Asia to the Middle East, to Europe and the Americas. Fascists defy constitutional order by refusing to obey judicial orders, or laws, or both, effectively becoming all-powerful, and/or by assuming such power by fiat (autogolpe in Spanish, or “self-coup”), as has happened previously on occasion in U.S. History, albeit briefly. My friends, unless and until the issue of the limits of Article II presidential power – if any – is resolved, this is the point at which our American Republic finds itself in March 2025.

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Terrorizing our fellow Americans

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Think about this: the Framers were so worried about a tyrant or wanna-be dictator destroying the Republic that they allowed each of the almost two thousand judges of the Third branch to check him, as well as all 535 members of the U.S. Congress. Then they laid federalism on top of that structure to further separate and divide power. They set out all these layers of possible protection against a single individual who could abuse power – the president.

And now, as eyewitnesses to history being made today, we can see why their concerns in 1787 in Philadelphia were so prescient and remain present and relevant in 2025. But fear not: we still have the Framers’ solution to the threat of tyranny they so hated and against which they girded their progeny: the U.S. Constitution. The Constitution the Framers gifted us. The one ratified in 1788. The same one under which we still operate as a nation in 2025.

This is an actual “fork in the road” moment

As I see it, the current case involving Trump’s deportation of Venezuelans to El Salvador and the issue of whether any limits exist on presidential power under Article II the case raises is perhaps the most important case in the history of the Republic. I see it this way precisely because it crystalizes everything about us and who we are as America, and as Americans:

Are we “a government of laws, and not of men” as John Adams said, – or in this case, a single man, the president –or aren’t we?

I believe this may be the culmination of Trump’s 10 year-long bid to consolidate absolute power, unrestrained by the Rule of Law, and to become a leader with no checks, no balances, and with immunity: a bona fide dictator. I see it as his attempt to complete a “legal coup” for absolute power. Either way, no matter the answer to the question of who we are, I believe the United States Supreme Court should answer it with a single voice when the time comes by issuing a unanimous, per curiam opinion stating what America is:

Are we a democratic constitutional republic, or aren’t we?

The Supreme Court of the United States must tell us and the World. The very essence and existence of the American Republic lies in this case. It is the culmination of my warnings since 2015 that Trump represents a clear and present existential threat to the Republic.

When a president knowingly and willfully disregards and fails to comply with a judicial order – it is alleged the decision to disregard the judge’s order was even done with aforethought before the judge issued it – then we no longer live in a democratic constitutional republic, but rather, in a dictatorship, ruled by a single individual illegally usurping power from the judicial branch in violation of the U.S. Constitution.

And that person, my friends, is a criminal lunatic psychopath (the list of adjectives for this unworthy man is too long for this short essay) with visions of grandeur, stated bellicose expansionist desires, and what some have described as advancing dementia. Judges: check this mate!

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Author: Rick Hein is a student of history, a concerned citizen, fluent in Spanish, and a member of the Missouri Bar.

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