How to Build a Police State
Regime Change, Part 2
I wrote last week that we are undergoing a “regime change,” in which our basic system of government has changed.
This is already an accomplished fact when it comes to the topic of that article: federal government spending. The congressional power of the purse has been seized by the executive, by way of Elon Musk’s DOGE takeover of federal payments.
Here’s another reminder of that.
Representative Tom Cole, Republican of Oklahoma, learned that his district might lose a Social Security Administration field office and the National Weather Center’s primary storm prediction hub the same way many other Americans did: through a public webpage the Department of Government Efficiency calls its “wall of receipts.”
Mr. Cole, the chairman of the powerful House Appropriations Committee that controls federal spending, quickly swung into action to try to head off the cuts. He and his aides started dialing their staff contacts at DOGE, the White House and the federal agencies in charge of the facilities on the chopping block, which also included a field office for the Indian Health Service.
Within days, a DOGE staff member had reassured Mr. Cole that the three buildings had been removed from the lease cancellation list. Mr. Cole took to social media to boast of his success, proclaiming that he was “so proud” to have advocated for his constituents and protected facilities that provide them with “vital and valuable services.”
As I put it before, “The executive branch is supposed to have to beg Congress for money—but now it’s the other way around.”
Elon Musk and Donald Trump share power in a duumvirate—like the old Roman triumvirate, but dumber. While Musk has been targeting spending and particularly domestic spending, Trump has focused on foreign policy, on tariffs, and on immigration.
It is on this last issue that he is setting precedents that are already being extended to permanent residents and from there can easily be extended to native-born citizens. The result will be the destruction of our most basic liberties.
Put simply, Donald Trump is claiming the power to arbitrarily seize anyone off the streets and dispose of him without due process—up to and including sending them off to slave labor in a foreign prison camp.
So far, Trump and his people are only doing this, supposedly, with immigrants. But I hope you are not fooled by that distracting cover. After all, without due process, how are we even to know that the people they seize and imprison are immigrants and not citizens?
I had expected Trump’s “mass deportation” crackdown to be an economic disaster and to require a militarized police state to impose. But this has exceeded even my expectations. What Trump is currently doing to immigrants is creating a system in which none of us will be safe.
Let’s look at what has happened so far.
But first, someone recently asked me why I put these updates behind a paywall when they are so important. Fair enough, and I have kept this one open to all readers. Because you really should read the whole thing.
But I can’t write these without your support, so if you really do think this is important, consider subscribing or donating to support this newsletter.
The Immigration Absolute State
The major story here is that in mid-March, the Trump administration rounded up several hundred Venezuelan immigrants who it claimed were members of a notorious criminal gang, Tren de Aragua. The men were quickly deported—in defiance of a federal judge’s order to turn the planes back—and taken to a brutal megaprison in El Salvador. (And the administration is still defying judicial review, sending more men just today.) Note that these men were not deported to their home country and released. That would be bad enough, since some of them would be subject to persecution there. Instead, they were sent to a prison in El Salvador, where they will be detained and forced to do hard labor for who knows how long.
Since then, the whole case has been falling apart. The men were deported with a total absence of due process, under the Alien Enemies Act of 1798, the only remaining part of the infamous Alien and Sedition Acts. And since they were deported without due process or judicial review, a lot of evidence has since come to light that they were neither criminals nor gang members, but just hapless victims—some of them legal asylum-seekers—sent off to a foreign prison camp as a sick public-relations stunt.
I’ll get to more of those details in a moment, but I first want to set the context, which is that this is the price we are paying for the long-standing practice of carving out an exception to the Constitution for immigrants.
Remember when Donald Trump promised to be a “dictator on day one”? Well, this is literally what he did. David Bier and Ilya Somin describe it.
In an executive proclamation issued within hours of being inaugurated, Trump asserted that he has total power to shut down virtually all legal immigration and ignore laws that protect immigrants from wrongful detention and deportation.
Trump and his people are constantly probing our political system for any area of weakness, any crack where authoritarianism can break through. One of the cracks they found is something called “plenary power doctrine” which one legal academic describes as “segregation’s last stronghold.” Plenary power essentially gives the president absolute and unchecked power over immigrants, limiting due process rights and other protections solely to citizens.
This doctrine has been around for a long time, despite the fact that it has absolutely no basis in the Constitution. You will note that the Fifth Amendment says, “No person shall…be deprived of life, liberty, or property, without due process of law.” It doesn’t say, “no citizen.” It says, “no person.” The United States was never intended to be a lawless zone of absolute power for everyone but citizens.
Yet that is precisely what Trump is making it.
Consider another string of cases. At Columbia University, a graduate student who had been an organizer of last year’s anti-Israel protests was suddenly arrested at his home. He had a green card, an immigration status just short of citizenship that guarantees him permanent status as a legal resident of the US. Despite that guarantee, Secretary of State Marco Rubio—sealing the deal Satan used to suck out his soul—proclaimed that he had revoked the green card under an obscure law giving the Secretary of State the power to do so if an immigrant’s presence in the US is contrary in some vague way to the interests of US foreign policy.
If you don’t believe me that this law is unconstitutional, listen to Donald Trump’s sister, a retired federal judge who ruled that way in 1996.
The law, she wrote, “confers upon a single individual, the secretary of state, the unfettered and unreviewable discretion to deport any alien lawfully within the United States” if “that person’s mere presence here would impact in some unexplained way on the foreign policy interests of the United States.”
That violated the Constitution in at least two ways, Judge Barry wrote. First, she said, it was too vague to give notice to the people subject to it of what conduct it prohibited….
Judge Barry offered a second reason for striking down the law, saying that it was an unconstitutional delegation of legislative power to the secretary of state, granting him complete discretion.
If this law sounds like a license to revoke the free speech rights of any immigrant who disagrees with Donald Trump’s views on foreign policy, that’s exactly what it is. Shortly afterward, a Tufts University student was snatched off the street by masked federal agents, in what looked like a kidnapping, for writing an op-ed critical of Israel.
Note that while I may disagree with their views, neither of these people engaged in acts of violence or are charged with any violation of the law. They are being targeted entirely for their political views.
More recently, the administration has announced a general ideological purge targeted specifically at student visas and flagging students for things as small as “likes” on social media.
Rubio said Thursday the State Department has canceled more than 300 visas and that they're "primarily" student visas. Several high-profile cases are related to students who led or participated in pro-Palestinian activities and disruptive protests, which the administration has equated to activity supporting Hamas, a US-designated terrorist group….
[A]t the core of the US government's detention and aimed deportation of Khalil is a rarely used section of the Immigration and Nationality Act that subjects noncitizens to possible deportation if their presence and activities are deemed threatening to the foreign policy interests of the US.
They’re also targeting tourists and visiting scientists.
Let me pause for a moment to point out that the US economy benefits enormously from an influx of bright and ambitious immigrants who come here for greater freedom and the ability to prosper in the United States. Now they are getting a consistent message: You cannot come here to study; there will be no funding for US science programs, anyway; there will be no protections for your freedom of speech; a once-coveted green card will offer you no protection from arbitrary arrest and imprisonment; and your children can never become citizens, even if they are born and raised here.
If America wanted to create a massive brain drain and send foreign talent elsewhere, this is how to do it. Adjust your stock portfolio accordingly.
Someone also pointed out to me how this connects to one of the most famous free speech cases, Abrams v. United States. In 1919, a Supreme Court majority upheld the prosecution of men who had criticized US involvement in World War I. The case became famous, not for its majority opinion, but for a dissenting opinion by Oliver Wendell Holmes in which he suggested the phrase “the marketplace of ideas.” He expressed it in the idea “that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent influenced later majority opinions that expanded the court’s protection of free speech.
What’s important in today’s context is that the defendants in that case were non-naturalized immigrants—yet Holmes stood up to defend their First Amendment rights. This action by the Trump administration is reversing a key step in the history of protection for free speech in this country.
That an argument for the free speech rights of immigrants turned out to lead to greater protection for everyone suggests that the trend can go the other direction. If a green card, which is the closest thing to citizenship, offers no protection—then you have to wonder how long it will take before citizenship offers no protection.
The realm of absolute power created for immigrants and now being exercised against them cannot coexist with limited government for citizens.
Why We Have Due Process
In fact, this is already happening. Jonathan Last points to a case in Texas where “The US government deported a 10-year-old girl with brain cancer even though she is a US citizen.”
That brings us back to those hapless Venezuelan “gang members,” because it turns out they are no such thing. Lawyers and reporters have gone to work finding out who some of them are. The Washington Post has a profile on four innocuous family men grabbed from an apartment in Texas, where they were just trying to work to support their families back home. Another man has been identified as a gay makeup artist with no gang connections. And there are other, similar stories.
So how did they end up as targets? Check out a Bluesky thread from immigration activist Aaron Reichlin-Melnick. The ACLU sued to obtain a checklist used by immigration officers to identify who is a “gang member,” including a comically subjective point system. The most salient aspect of this system is that it creates a cascade effect. If one man gets enough points to be deemed a “gang member,” every one of his friends gets multiples points for “associating” with a gang member, and so they are all listed as gang members, too, in an ever-widening circle.
The main thing used for identification is tattoos, so the ACLU obtained the reference material used to determine what are “gang tattoos.” Thanks to the magic of the Internet, it was quickly determined that all of the images used by the government as examples of “gang tattoos” were pulled from random internet sites of legitimate tattoo artists. One tattoo, identified by the Department of Homeland Security as the “jump man” symbol, is very obviously an outline of basketball star Michael Jordan, complete with a “23,” the number on his jersey.
In short, the government’s process for deciding who is a gang member is completely subjective, and the evidence is all made up. If a government officers wants to lock someone up for whatever reason, they can deem him a “gang member” and just do it.
This is what the lack of due process looks like. This is what arbitrary power looks like.
Our government has basically acknowledged this, admitting in court filings that “It is true that many of the [alleged] TdA members removed under the [Alien Enemies Act] do not have criminal records in the United States” and later that most of them have no criminal record anywhere.
Here is the government’s twisted rationale, courtesy of the Washington Post’s Philip Bump:
“While it is true that many of the TdA members removed under the [Alien Enemies Act] do not have criminal records in the United States, that is because they have only been in the United States for a short period of time,” a statement from Homeland Security official Robert L. Cerna reads. “The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose.”
They are dangerous…because they are not known to be criminals.
Reporters also discovered that the US government’s own intelligence reports contradict Trump’s claims about Venezuelan immigrants.
This was all inevitable. Donald Trump and his gang were never just going to deport criminals. They were going to mostly target innocent people. This is for two reasons.
First, it’s because conservative propaganda is wrong and the overwhelming majority of immigrants are not criminals. It’s well-established that immigrants commit crimes at a lower rate than native-born Americans. So the actual number of criminal immigrants is too small for the mass deportations Trump’s base needed to feed their hatred.
Second, finding actual criminals, arresting them, and proving they are criminals is hard, and Trump wants results fast. You know what's easy? Finding people who applied for asylum, who gave you their addresses, who showed up for appointments, who were trying to do things properly through the legal system. That's why that is already the overwhelming majority of the people we are deporting.
Proving to the NKVD You’re Not a Camel
We’re not just deporting them, we’re treating them with deliberate and conspicuous cruelty. This applies especially to the Venezuelans sent to El Salvador. I beg of you to read a photojournalist’s description of the brutality of their arrival at the Salvadoran prison. It’s the last paragraph that haunts me.
They entered their cold cells, 80 men per cell, with steel planks for bunks, no mats, no sheets, no pillow. No television. No books. No talking. No phone calls and no visitors. For these Venezuelans, it was not just a prison they had arrived at. It was exile to another world, a place so cold and far from home they may as well have been sent into space, nameless and forgotten. Holding my camera, it was as if I watched them become ghosts.
What does it mean that innocent people can be snatched off the streets of an American city and sent by the authorities into this?
The only way to objectively describe this is to strip it of its legalistic terms, because this is not being done through any actual legal process. To name it accurately, we would say that Trump’s goons are kidnapping people off the streets and selling them into slavery. Except, wait, we’re the ones paying Salvadoran strongman Nayib Bukele to keep these people in his prison. We’re paying him to enslave innocent people.
Timothy Snyder is an expert on authoritarianism, and he describes how the theater of cruelty toward these people is part of the attempt to condition us to authoritarianism.
The videos that are being distributed are not some assemblage of footage caught haphazardly by cell phones. They are the result of fixed cameras, set in place in advance, with camera operators awaiting the action. The result is propaganda film worthy of the 1930s, in which the Leader determines what is true and what is false and who is human and who is not (“monsters”) through a procedure of charismatic violence. If you watch these films, please consider that they are meant to draw you in to a politics of us and them, to a world of lying and hatred beyond law, to a new regime that can come to replace our republic—but only with your assent.
At Liberal Currents, Alan Elrod compares a video shot at the Salvadoran prison by Homeland Security Chief—no, make that gang leader—Kristi Noem, to a “lynching postcard.”
Lynching postcards are one of those pieces of American history that strip the bark off of anyone the first time they learn about it. Lynching itself—the ritualized practice of racial terror executions carried out against black Americans waged from the end of the Civil War until the mid-20th century—is a profound stain on our national history.
But many Americans are often surprised to learn that, as the decades of early amateur photography unfolded, whole communities would gather to pose and have their picture taken with the bodies of the victims. And these photos were frequently turned into postcards, purchased as keepsakes and also sent across the country as letters to loved ones and distant relations….
Noem posed in front of the cell with her hair curled, a diamond ring on her finger, and a watch reportedly worth up to $65,000.00 on her wrist. In her video, Noem is playing the part of an influencer as much as a government official. It feels like something with all the trappings of Instagram sponsored content, but it is a message of state propaganda with a backdrop of fascistic violence and injustice.
This brings us back to how all of this applies to you and me. As Snyder observes:
If you accept that non-citizens have no right to due process, you are accepting that citizens have no right to due process. All the government has to do is claim that you are not a citizen; without due process you have no chance to prove the contrary.
David Woodruff, who studies Soviet economic history, provides the Russian version.
A very old Soviet joke, from an especially dark time:
Foxes are fleeing the USSR in droves.
Q: Why are you running away?
Fox: The Soviets passed a new law that they’re going to arrest all camels.
Q: But you’re foxes!
Fox: Yeah, why don’t you try proving to the NKVD that you’re not a camel.
As a coda to this, I should point out that Snyder and another expert on authoritarianism—Jason Stanley, author of How Fascism Works—just announced they are leaving Yale to teach at Canadian universities. If that is not a sign of the times, I don’t know what is.
First, They’re Killing All the Lawyers
But surely we can rely on the lawyers and the courts to protect us. In fact, everything I just told you is something we know because we have lawyers challenging this administration in the courts.
For now. But at the rate we’re going, not for much longer.
I will direct you to a thorough and terrifying piece from Walter Olson about Trump’s assault on the entire legal profession, which is aimed at making it impossible for lawyers to represent anyone he and his regime designate as an opponent.
The Trump administration’s assault on lawyers who represent its perceived adversaries has so far targeted by decree three major firms and caused one of them, the venerable Paul, Weiss, to capitulate. But a new presidential memorandum outlines the White House’s expansion to a more general scheme of penalties against law firms that take legal positions that it regards as baseless, vexatious, or unreasonable across the range of courtroom disputes in which the federal government is a party….
As someone who has made something of a specialty of writing about lawyering gone wrong over many years, I’ve long thought that a good case exists for a stronger sanctions regime…. But that’s not what it does—not at all.
The whole idea of the memo is to take away from the courts the role of assessing whether lawyers who battle Trump’s actions have misbehaved and, if they have, what penalty should be levied. Instead, it asserts an arbitrary and peremptory power in the executive to decide for itself what counts as misconduct by opposing lawyer.
Seriously, read the whole thing. And I just recorded a podcast with Walter that will be posted soon at The UnPopulist.
This is literally an attempt to outlaw legal opposition to the regime. As the administration asserts the right to imprison people in foreign gulags without due process, it is also working to ensure that we will have no right to legal representation.
In fact, that outcome is already happening.
Biden-era officials said they’re having trouble finding lawyers willing to defend them. The volunteers and small nonprofits forming the ground troops of the legal resistance to Trump administration actions say that the well-resourced law firms that once would have backed them are now steering clear. The result is an extraordinary threat to the fundamental constitutional rights of due process and legal representation, they said—and a far weaker effort to challenge Trump’s actions in court than during his first term.
Due process is not just a legal concept. It is an epistemological concept. It is a requirement that the government provide evidence and establish truth before it can act against an individual.
Greg Sargent names the most fundamental issue:
Trump has tried to dictate reality by executive fiat. He said we are under invasion by Venezuela through gang members—objectively false. But he wants the power to declare it so and have this be unreviewable.
That’s what the attack on the courts is about. It’s also what every dictatorship is ultimately about.
The Constitutional Crash
We’re not quite done drawing this picture, because here is what the administration is really working themselves up to. When he took office, Donald Trump directed the Department of Defense and the Department of Homeland Security to draft a report within 90 days on whether Trump can invoke the Insurrection Act, using this fake “invasion” to impose martial law.
Yes, that’s right. The man who fomented an insurrection now wants the power to declare his opponents to be in a state of insurrection and subject them to unchecked government power.
If you think they won’t do it, see this screenshot of a tweet from white nationalist Trump advisor Stephen Miller spelling out the whole phony rationale and salivating over the prospect.
I’ve been saying for a while that this is not a constitutional crisis. We’re way beyond that. The best phrase I’ve heard is that this is a “constitutional crash,” “not in the plane crash or car crash sense, but in the medical sense—we’re living through the sudden, ER-style flatlining of the healthy biorhythms of our 249-year-old constitutional order. Our national system of democracy and shared responsibilities is already dead on the table, waiting to see if there’s a shock large enough and strong enough to jolt it back to life.”
I’ve been giving you a lot of gloom and doom, but this is not a counsel of passivity and despair. There are things we can do to fight back, practical programs for resistance, and I will catalog them soon. But first it’s important to understand what we’re up against, fully and exactly, so we know what we have to oppose.
In the meantime, there is an election right now where Elon Musk is trying to buy the Wisconsin Supreme Court. If you’re in Wisconsin, you know what to do.
And there’s one more thing you can do. Stay informed and fund the resistance by supporting newsletters like this one.
Among my concerns is the concern that once Trump declares the Insurrection Act in effect, they will shut down--with the military--any protests by the people. I was a freshman in college when Kent State happened--the tragic loss of the lives of four students will seem miniscule compared to the potential numbers of people who will lose their lives.
I'm so sorry you're right.