The disregard that Trump administration immigration officials have for the law extends to denying members of Congress the ability to inspect ICE detention facilities for the purposes of oversight.
So now, a dozen Democratic members of Congress, including New Yorkers Adriano Espaillat and Dan Goldman, have sued the Trump administration with one simple but key demand: follow the plain language of the law that guarantees lawmakers access. Despite that very clear directive, ICE officials have been refusing congressmembers access for weeks on various rationales, mainly that facilities that are not technically designated detention centers — like the reportedly atrocious holding room on the 10th floor of 26 Federal Plaza downtown — are not covered by the law. This is hogwash.
There has always been something of a push-pull between Congress and the president, there of course have been instances when the executive branch acted outside the bounds of the law, from Iran-Contra to Watergate. These, though, have generally either been surreptitious efforts or ones that the White House has attempted strenuously to legally justify.
However, like with so much that is Trump, it is unprecedented for an administration to simply tell members of Congress to their faces (which is literally what has happened in some of these encounters) that they will not follow the laws passed by Congress.
Federal installations where the government is detaining people long-term — meaning these people are held there under executive authority and not allowed to leave for multiple days — are detention facilities covered by the law, period, no matter what ICE chooses to call them. Courts have long slapped the federal government down for trying to use procedural gimmicks to avoid legal obligations.
Sadly, even getting to this stage means that Trump has to some extent already won. Even if he now loses expeditiously in court, which he absolutely should, he got to keep oversight out of these facilities for a period of months on his own say-so, all while the policy was plainly illegal.
The strategy is a reprise from the Trump first term, which was to effectively overwhelm the rule of law. If it engages in constant brazen illegal conduct, those hoping to defend the rule of law, including members of Congress, will end up playing whack-a-mole to get these policies blocked or tossed out, even as the administration just moves onto the next thing.
The only way this changes is if top administration officials making these decisions face real consequences for illegal conduct that go beyond policies being struck down. Contempt proceedings like those explored by D.C Federal Judge James Boasberg, before they were indefinitely put on hold by the Appeals Court, are not just a legal novelty, but a crucial tool in ensuring that officials understand that it is not optional to comply with the law.
Only when there are such actual repercussions will we see Trump’s enforcers actually think twice about carrying out unlawful orders. The Supreme Court may have ruled that Trump himself is immune from prosecution for official actions, but the same is not true of hundreds of thousands of lower-level decision-makers throughout the federal bureaucracy.
One would hope that they would follow the law by virtue of allegiance to the Constitution and sense of civic duty, but if that’s not enough, they should remember that the branches are co-equal, and the other loci of government authority can hold them accountable. In this case and the other clear overreaches of federal authority, that should be concretely on the table.
