“These actions could be taken broadly at the outset, before courts rule on their legality, preceding any form of judicial review,” Winer said.
In other words, time would be on Trump’s side, with the likelihood that Congress and the courts would be slow to react, and both might well passively accede to Trump’s effective cancellation of an election.
McCleary elaborated on Winer’s suggestion that the Department of Homeland Security’s detention facilities could be used for jailing protesters: “The FY2025 budget appropriated $45 billion for immigration enforcement, including $38.3 billion for ICE facility construction — a 265 percent increase over the previous fiscal year.”
The money, McCleary argued, far exceeds the needs of the department, raising the question of “whether this scale is proportionate to its stated purpose.” McCleary contended that this over-the-top budgeting means either that
the administration plans extrajudicial removal without hearings — which requires emergency authority to bypass due process protections; or
the infrastructure is being built for a purpose or scale beyond what immigration enforcement alone would justify.
McCleary argued that his analysis is more substantial that a conspiracy theory:
We do not allege secret coordination. We observe public convergence. Each instrument was enacted openly. Their combined effect — mass detention capacity plus terrorism designation of political opposition plus criminal prosecution of association — has no precedent in American law outside wartime.
Would the courts intervene?
The Supreme Court’s exceptional deference to Trump is the subject of “President Trump in the Era of Exclusive Powers,” an April 2025 paper by Shalev Gad Roisman, a law professor at the University of Arizona. It says:
The defining doctrinal innovation of the second Trump administration has been to take the Supreme Court at its word. In recent years, the court has embraced an extremely broad view of the president’s “exclusive” powers that cannot be regulated by Congress. The Trump administration is now showing what it might mean to take the court’s statements literally.
“The second Trump administration has exercised executive power in ways unparalleled in modern history,” Roisman continued, adding,
I do not think the Roberts court ever planned, or even considered, taking its own separation of powers doctrine quite this far. But, while the regime of full executive control that the Trump administration is striving to create might be beyond what the court foresaw, it is not necessarily beyond what it said.
When I first queried Kenneth Mayer, a political scientist at the University of Wisconsin-Madison, he replied by email with a largely technical examination of presidential powers. A few days later he added to his comments, writing:
What I did not accurately convey is how Trump has obliterated the boundaries and guardrails that we had long thought would serve as meaningful constraints on presidential extremism.
He is acting as if his will is law, the government and everything in it belongs to him, and everyone owes their allegiance to him, to the Constitution, the law or the public good.
What we are seeing now, Mayer concluded, “is not normal, is utterly corrosive to principles of constitutional and democratic governance and is extremely dangerous.”
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