WASHINGTON, D.C. — Denouncing the Trump Administration’s ongoing attempts to suppress dissent and chill lawful First Amendment activity, The Rutherford Institute has joined a broad coalition of eleven legal and civil liberties organizations to challenge President Trump’s use of presidential executive orders to retaliate against perceived political opponents.
The coalition, which includes the ACLU, ACLU of DC, CATO, Electronic Frontier Foundation, FIRE, the Institute for Justice, the Knight First Amendment Institute, the National Coalition Against Censorship, the Reporters Committee for the Freedom of the Press, the Society for the Rule of Law, and The Rutherford Institute, filed an amicus brief in Perkins Coie LLP v. U.S. Department of Justice asking a federal court to strike down the president’s executive order as a violation of the separation of powers and an unconstitutional infringement on the rights to free speech, advocacy and due process.
“That the Trump Administration is weaponizing the government in order to wage a war against dissent, against due process, and against the very foundations of our constitutional republic should be a warning to all Americans,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “History shows that when governments claim the power to silence dissent—whether in the name of national security, border protection, or law and order—that power rarely remains limited. These threats against the legal community and ‘we the people’ are merely the first round of the Trump Administration’s effort to turn the Bill of Rights into a Bill of Conditional Privileges.”
In an effort to punish the law firm of Perkins Coie and discourage any other law firms from challenging the Trump Administration’s ongoing efforts to sidestep the Constitution, President Trump issued an Executive Order directing the federal government to suspend the firm’s security clearances, cease providing all goods and services, terminate any contracts with the firm and those who do business with the firm, limit the firm’s access to federal buildings and employees, and refrain from hiring employees of the firm. The intent behind the president’s actions, per former advisor Steve Bannon, is to “put those law firms out of business” so that they can no longer use the system of checks and balances to prevent the Administration from violating the Constitution.
Perkins Coie filed a lawsuit to prevent the implementation of Trump’s Order on grounds that it violates the separation of powers and the First, Fifth, and Sixth Amendments. Warning that Trump’s actions constitute a brazen attack on the independence of the legal profession and the judicial branch, the legal coalition’s amicus brief argues that Trump’s Executive Order not only infringes the First Amendment rights to freedom of speech and petitioning the government, but it also essentially gives the government an unfettered veto over a person’s right to choice of counsel due to the government pushing for a cancel culture and creating a blacklist of firms, similar to what the NRA previously claimed was done to it by a New York state official. Moreover, if the executive order is allowed to stand, it could set a precedent for future Administrations of either political party to suppress challenges to a president’s unconstitutional policies and actions and to deter lawyers from representing the president’s political opponents and any clients adverse to the Administration.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
“If Trump can disappear them, he can disappear you. The Trump regime is already targeting immigrants who are here legally simply because they expressed opinions that Trump disagreed with. What makes you think he’ll stop there? With no court to verify anything the Trump regime alleges, you could be arrested and sent to a prison in El Salvador for having views the regime dislikes.”—Robert Reich
Imagine this: you’re rounded up in the dead of night by government agents, arrested and sent to a detention center. The arresting agents don’t identify themselves, nor do they provide any documentation indicating why you are being detained. Nevertheless, without your family or friends knowing that you have been taken hostage, without anyone knowing where you are being transported or why, and without any opportunity to defend yourself or proclaim your innocence, you are flown out of the country to a foreign prison in a police state where you will have no rights whatsoever.
There can be no understating the danger.
The war on due process is here.
No trials. No hearings. No rights. Just indefinite detention and secret deportations.
This is the fate that awaits every one of us, not just immigrants (legal or otherwise), if the government’s war on the Constitution remains unchecked.
As historian Timothy Snyder warns, “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.”
More than two decades after the U.S. government in its post-9/11 frenzy transported individuals, some of whom had not been charged let alone convicted of a crime, to CIA black sites (secret detention centers located outside the U.S. authorized to torture detainees) as a means of sidestepping legal protocols, the Trump Administration is using extraordinary rendition to make those on its so-called “enemies list” disappear.
The first round of arrests and deportations to a mega-prison in El Salvador supposedly targeted members of the infamous Venezuelan gang Tren de Aragua.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” declared U.S. Circuit Judge Patricia Millett. “Y’all could have put me up on Saturday and thrown me on a plane, thinking I’m a member of Tren de Aragua and giving me no chance to protest it and say somehow it’s a violation of presidential war powers.”
Carried out with little evidence and without court hearings or due process, these roundups reportedly may also have swept up individuals with no apparent connection to gang activity apart from common tattoos (firearms, trains, dice, roses, tigers and jaguars) and other circumstantial evidence.
In other words, the government is prepared to preemptively arrest and make people disappear, without any regard for legal protocols or due process, based solely on the president’s claim that they could at some point in the future pose a threat to national security.
This takes pre-crime and preemptive arrests to a whole new sinister level of potential abuses.
Are you starting to sense how quickly this could go off the rails?
This is how democracies collapse. This is how rights disappear overnight.
The most egregious of these incidents involve college students, scientists and doctors, all of them legal permanent residents of the U.S. who, while never having been charged with a crime, are accused of threatening national security by taking part in anti-war protests over the growing death toll in Gaza as a result of the Israeli-Hamas war, or sympathizing with the Palestinians, or being associated with someone who might sympathize with the Palestinians.
When merely exercising one’s right to criticize the government in word, deed or thought is equated to an act of domestic terrorism, we are all in trouble.
Whether those being rounded up and deported have done anything criminally wrong is not the point. That’s what the courts and the Constitution are for: to ensure that justice is served through due process and the right of the accused to have their day in court.
It’s not always a perfect system, but it is better than the alternative, which is outright tyranny.
Indeed, it appears that President Trump is borrowing heavily from the lockdown script used by Nayib Bukele, president of El Salvadora, another police state characterized by arbitrary detentions, systemic violations, brutality, and censorship, which has been under a permanent state of emergency since 2022.
Yet as Amnesty International warns, “‘Security’ at the expense of human rights,” increased militarization, and armed repression coupled with “efforts by state agents to stigmatise human rights organisations and the free press and to thwart their efforts, has fostered a climate of fear and intimidation that stifles civil society and spurs self-censorship.”
Under Bukele, who used a war on gang violence as the pretext for seizing power, constitutional rights have been suspended, with attorneys general fired, judges replaced by loyalists, the legislative and judicial branches coalesced under one party, presidential term limits set aside, innocent individuals swept up in mass arrests, Bitcoin declared legal currency, and friendly overtures made to Russia and China.
Through his use of executive orders, proclamations and so-called national emergencies, President Trump has essentially declared war on the rule of law.
Make no mistake: while immigrants, illegal and legal alike, have largely been the first victims of the Trump administration’s efforts to circumvent the Constitution in order to make them disappear, it’s our very freedoms that are being made to disappear.
At the heart of these freedoms is the right of habeas corpus.
Translated as “you should have the body,” habeas corpus is a legal action by which those imprisoned unlawfully can seek relief from their imprisonment.
Derived from English common law, habeas corpus first appeared in the Magna Carta of 1215 and is the oldest human right in the history of English-speaking civilization. The doctrine of habeas corpus stems from the requirement that a government must either charge a person or let him go free.
Without habeas corpus, other rights become vulnerable to executive overreach.
The Framers of the Constitution, having experienced first-hand what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before an impartial judge, were acutely aware of the potential for government tyranny. Thus, they enshrined the writ in Article I, Section IX, of the Constitution, rather than the Bill of Rights, underscoring its fundamental importance as a safeguard against arbitrary detention and ensuring its protection at the federal level.
It has all been downhill since then.
History has shown us the dangers of unchecked executive power. Lincoln’s suspension of habeas corpus during the Civil War led to mass arrests without trial, setting a dangerous precedent.
Decades later, the internment of Japanese Americans during World War II demonstrated how easily fear can be weaponized to justify the imprisonment of innocent people.
Each time habeas corpus has been weakened, it has taken years—sometimes generations—for justice to be restored, if ever.
We cannot afford to repeat these mistakes.
While the Constitution allows the writ of habeas corpus to be suspended in cases of rebellion or invasion when public safety is imperiled, the Trump Administration’s efforts to keep the nation in a permanent state of emergency in order to justify its power grabs leaves “we the people” subject to the kinds of arbitrary mass round-ups, arrests and deportations that have been favored by despots and dictators.
This is usually where the self-righteous defenders of Trump’s blatantly unconstitutional tactics insist that the protections of the Constitution only apply to U.S. citizens.
They are wrong.
At a minimum, as the U.S. Supreme Court has affirmed, the rights enshrined in the first ten amendments to the Constitution apply to all people in the United States, regardless of their citizenship or immigration status. Those rights include free speech, peaceful protest and criticism of the government, assembly, religious freedom, equal protection under the law, due process, legal representation, privacy, among others.
Then again, what good are rights if the government doesn’t respect them?
What good are rights if the president is empowered to nullify them whenever he wants?
For that matter, what good is a government that betrays its own citizens?
When not even citizenship is protection against the abuses of an authoritarian regime, it’s time to do what our forefathers did when they finally got fed up with being silenced, censored, searched, frisked, threatened, and arrested: revolt against the tyrant’s fetters.
History has shown us that when governments operate without checks and balances, tyranny follows. The question is not whether mass arrests and indefinite detentions could be expanded to American citizens—it’s how long before they are.
If we allow the erosion of due process, if we accept that a president can unilaterally decide who is a threat without oversight, then we have already lost the freedoms that define us as a nation.
This is not just about immigrants.
It’s about every American who values liberty over unchecked power.
We must demand accountability. We must challenge policies that violate constitutional protections. We must support organizations fighting for civil liberties, educate ourselves on our rights, and refuse to be silenced by fear. Because when the government starts making people disappear, the only way to stop it is by making our voices impossible to ignore.
You can’t live in a constitutional republic if you allow the government to act like a police state.
You can’t claim to value freedom if you allow the government to operate like a dictatorship.
You can’t expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.
There’s always a boomerang effect.
Whatever dangerous practices you allow the government to carry out now—whether it’s in the name of national security or protecting America’s borders or making America great again—rest assured, these same practices can and will be used against you when the government decides to set its sights on you.
The chilling of political speech and suppression of dissident voices are usually among the first signs that you’re in the midst of a hostile takeover by forces that are not friendly to freedom.
This does not seem to be a regime that respects the rights of the people.
Indeed, these ICE agents, who were “just following orders” from on high, showed no concern that the orders they had been given were trumped up, politically motivated and unconstitutional.
If this is indeed the first of many arrests to come, what’s next? Or more to the point, who’s next?
We are all at risk.
History shows that when governments claim the power to silence dissent—whether in the name of national security, border protection, or law and order—that power rarely remains limited. What starts as a crackdown on so-called “threats” quickly expands to include anyone who challenges those in power.
President Trump has made it clear that Mahmoud’s arrest is just “the first arrest of many to come.” He has openly stated his intent to target noncitizens who engage in activities he deems contrary to U.S. interests—an alarmingly vague standard that seems to change at his whim, the First Amendment be damned.
If history is any guide, the next targets will not just be immigrants or foreign-born activists. They will be American citizens who dare to speak out.
If you need further proof of Trump’s disregard for constitutional rights, look no further than his recent declaration that boycotting Tesla is illegal—a chilling statement that reveals his fundamental misunderstanding of both free speech and the rule of law.
What this means is that anyone who dares to disagree with the government and its foreign policy and express that disagreement could be considered a threat to the country’s “national security interests.”
Yet the right to speak out against government wrongdoing is the quintessential freedom.
Indeed, the First Amendment does more than give us a right to criticize our country: it makes it a civic duty. Certainly, if there is one freedom among the many spelled out in the Bill of Rights that is especially patriotic, it is the right to criticize the government.
Unfortunately, the Deep State doesn’t take kindly to individuals who speak truth to power.
This is nothing new, nor is it unique to any particular presidential administration.
Regardless of party, those in power have repeatedly sought to limit free speech. What’s new is the growing willingness to criminalize political dissent under the guise of national security.
Clearly, the government has been undermining our free speech rights for quite a while now, but Trump’s antagonism towards free speech is taking this hostility to new heights.
The government has a history of using crises—real or manufactured—to expand its power.
Once dissent is labeled a threat, it’s only a matter of time before laws meant for so-called extremists are used against ordinary citizens. Criticizing policy, protesting, or even refusing to conform could be enough to put someone on a watchlist.
We’ve seen this before.
The government has a long list of “suspicious” ideologies and behaviors it uses to justify surveillance and suppression. Today’s justification may be immigration; tomorrow, it could be any form of opposition.
This is what we know: the government has the means, the muscle and the motivation to detain individuals who resist its orders and do not comply with its mandates in a vast array of prisons, detention centers, and concentration camps paid for with taxpayer dollars.
It’s just a matter of time.
It no longer matters what the hot-button issue might be (vaccine mandates, immigration, gun rights, abortion, same-sex marriage, healthcare, criticizing the government, protesting election results, etc.) or which party is wielding its power like a hammer.
The groundwork has already been laid.
Under the indefinite detention provision of the National Defense Authorization Act (NDAA), the President and the military can detain and imprison American citizens with no access to friends, family or the courts if the government believes them to be a terrorist.
After all, it doesn’t take much to be considered a terrorist anymore, especially given that the government likes to use the words “anti-government,” “extremist” and “terrorist” interchangeably.
This is what happens when you not only put the power to determine who is a potential danger in the hands of government agencies, the courts and the police but also give those agencies liberal authority to lock individuals up for perceived wrongs.
It’s a system just begging to be abused by power-hungry bureaucrats desperate to retain their power at all costs.
Having allowed the government to expand and exceed our reach, we find ourselves on the losing end of a tug-of-war over control of our country and our lives. And for as long as we let them, government officials will continue to trample on our rights, always justifying their actions as being for the good of the people.
Yet the government can only go as far as “we the people” allow. Therein lies the problem.
This is not just about one administration or one set of policies. This is a broader pattern of governmental overreach that has been allowed to unfold, unchecked and unchallenged. And at the heart of this loss of freedom is a fundamental misunderstanding—or even a deliberate abandonment—of what sovereignty really means in America.
Sovereignty is a dusty, antiquated term that harkens back to an age when kings and emperors ruled with absolute power over a populace that had no rights. Americans turned the idea of sovereignty on its head when they declared their independence from Great Britain and rejected the absolute authority of King George III. In doing so, Americans claimed for themselves the right to self-government and established themselves as the ultimate authority and power.
In other words, as the preamble to the Constitution states, in America, “we the people”—sovereign citizens—call the shots.
So, when the government acts, it is supposed to do so at our bidding and on our behalf, because we are the rulers.
That’s not exactly how it turned out, though, is it?
In the 200-plus years since we boldly embarked on this experiment in self-government, we have been steadily losing ground to the government’s brazen power grabs, foisted upon us in the so-called name of national security.
The government has knocked us off our rightful throne. It has usurped our rightful authority. It has staged the ultimate coup. Its agents no longer even pretend that they answer to “we the people.”
This is how far our republic has fallen and how desensitized “we the people” have become to this constant undermining of our freedoms.
If we are to put an end to this steady slide into totalitarianism, that goose-stepping form of tyranny in which the government has all of the power and “we the people” have none, we must begin by refusing to allow the politics of fear to shackle us to a dictatorship.
President Trump wants us to believe that the menace we face (imaginary or not) is so sinister, so overwhelming, so fearsome that the only way to surmount the danger is by empowering the government to take all necessary steps to quash it, even if that means allowing government jackboots to trample all over the Constitution.
Don’t believe it. That argument has been tried before.
The government’s overblown, extended wars on terrorism, drugs, violence and illegal immigration have all been convenient ruses used to terrorize the populace into relinquishing more of their freedoms in exchange for elusive promises of security.
We are walking a dangerous path right now.
Political arrests. Harassment. Suppression of dissident voices. Retaliation. Detention centers for political prisoners.
These are a harbinger of what’s to come if the Trump administration carries through on its threats to crack down on any and all who exercise their First Amendment rights to free speech and protest.
We are being acclimated to bolder power grabs, acts of lawlessness, and a pattern of intimidation, harassment, and human rights violations by government officials. And yet, in the midst of this relentless erosion of our freedoms, the very concept of sovereignty—the foundational idea that the people, not the government, hold ultimate power—has been all but forgotten.
“Sovereignty” used to mean something fundamental in America: the idea that the government serves at the will of the people, that “we the people” are the rightful rulers of this land, and that no one, not even the president, is above the law. But today, that notion is scarcely discussed, as the government continues its unchecked expansion.
We have lost sight of the fact that our power is meant to restrain the government, not the other way around.
Don’t allow yourselves to be distracted, derailed or desensitized.
“Never has our future been more unpredictable, never have we depended so much on political forces that cannot be trusted to follow the rules of common sense and self-interest — forces that look like sheer insanity, if judged by the standards of other centuries.”—Hannah Arendt, The Origins of Totalitarianism
The Republican-controlled Congress appears to be deaf, dumb and blind to the Executive Branch’s blatantly unconstitutional overreaches.
The courts, which have in recent years largely rubberstamped the government’s power grabs, are ill-prepared to rein in a sitting president who is determined to do whatever he wants, the Constitution be damned.
Rather, it speaks volumes about the priorities of the current presidential administration, which operates as if the rule of law does not apply to itself.
Rule by fiat—when presidents attempt to unilaterally impose their will through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements—is an offense to the Constitution.
It was offensive when Biden did it. It was offensive when Obama did it. And it is just as offensive when Trump does it.
This is not a sign of strength and leadership. This is a red flag.
In bypassing Congress in order to carry out his ambitious agenda to “make America safe again,” “make America affordable and energy dominant again,” “drain the swamp,” and “bring back American values,” the Trump Administration risks transforming the executive branch into something akin to the very entities it often criticizes: an overreaching surveillance state, a nanny state that dictates individual choices, and a police state that prioritizes compliance over freedom.
It is particularly telling that while Trump and his Musk-led Department of Government Efficiency (DOGE) are pledging to lay off huge swaths of federal employees and replace the workforce with artificial intelligence, the police state’s martial law apparatus will remain largely untouched.
This is how you prepare to lock down a nation.
This danger transcends party lines and tests the resilience of our constitutional framework.
How far will “we the people” allow the Executive Branch to continue to expand its power at the expense of established legal principles and the rule of law?
As much as past occupants of the White House and Congress would like us to believe otherwise, winning an election is not a populist mandate for one-party rule.
This way lies totalitarianism, by way of authoritarianism, and those who insist it can’t happen here need to pay better attention.
State police are directed to protect the regime, not the people.
Financial, legal, and civil rights are contingent on compliance.
There is a mass conformity of behaviors and beliefs.
Power is concentrated in an inner ring of people and institutions.
Semi-organized violence is permitted.
Propaganda targets enemies of the state.
Whole classes of people are scapegoated and singled out for persecution.
Extra-legal action against internal enemies is condoned.
Unpredictable and harsh enforcement is used against unfavored classes.
The language of the constitution serves as a facade for the exercise of power.
And all private and public levers of power are used to enforce adherence to state orthodoxy.
To guard against these pitfalls, we must start by understanding the rule of law, and how it functions within our system of checks and balances.
The rule of law is the principle that everyone, including the government—and the president—must obey the law, which is embodied in the U.S. Constitution.
In a nutshell, the Constitution is the social contract—the people’s contract with the government—which outlines our expectations about the role of the government and its limits, a system of checks and balances dependent on a separation of powers, and the rights of the citizenry.
America’s founders established a system of checks and balances to prevent the concentration of power in any single branch. To this end, the Constitution establishes three separate but equal branches of government: the legislative branch, which makes the law; the executive branch, which enforces the law; and the judicial branch, which interprets the law.
As constitutional scholar Linda Monk explains, “Within the separation of powers, each of the three branches of government has ‘checks and balances’ over the other two. For instance, Congress makes the laws, but the President can veto them, and the Supreme Court can declare them unconstitutional. The President enforces the law, but Congress must approve executive appointments and the Supreme Court rules whether executive action is constitutional. The Supreme Court can strike down actions by both the legislative and executive branches, but the President nominates Supreme Court justices, and the Senate confirms or denies their nominations.”
Despite Trump’s attempts to rule by fiat, nowhere in the Constitution is the president granted unilateral authority to act outside these established checks and balances, no matter how well-meaning his intentions might be or how worthy the goals (a balanced budget, safety, economic prosperity, etc.).
Writing for The Washington Post, Alan Charles Raul, general counsel of the Office of Management and Budget under Presidents Reagan and George H.W. Bush, warns that not only is Trump acting extra-constitutionally, i.e., beyond the scope of the Constitution, but he lays out the case for why DOGE itself is unconstitutional:
“The protocols of the Constitution do not permit statutorily mandated agencies and programs to be transformed — or reorganized out of existence — without congressional authorization… The radical reorganization now underway is not just footfaulting over procedural lines; it is shattering the fundamental checks and balances of our constitutional order. The DOGE process, if that is what it is, mocks two basic tenets of our government: that we are nation of laws, not men and that it is Congress which controls spending and passes legislation. The president must faithfully execute Congress’s laws and manage the executive agencies consistent with the Constitution and lawmakers’ appropriations — not by any divine right or absolute power… [T]here is no reading of the Constitution that allows any president to claim that a political mandate, or a political promise made, obviates or supersedes the role for Congress… Even under the most aggressive view of the president’s ‘unitary executive’ control over the entire executive branch and independent agencies, it is Congress’s sole authority to appropriate and legislate for our entire government… [I]n the end, the president is constitutionally stuck with the policies for the federal government that Congress enacts and appropriates. No one man in America is the law — not even a Trump or an Elon Musk.”
Allowing the president to bypass established legal procedures in order to prioritize his own power over adherence to the rule of law ultimately undermines the principles of a constitutional government.
Which brings us to the present moment.
With Congress on the sidelines, the momentum is building for a constitutional showdown between the White House and the judiciary.
This is as it should be.
The job of the courts is to maintain the rule of law and serve as the referees in the power struggle between the President and Congress. That delicate balance between the three branches of government was intended to serve as a bulwark against tyranny and a deterrent to any who would overreach.
So for anyone, especially someone who has sworn to uphold and defend the Constitution, to suggest that “judges aren’t allowed to control the executive’s legitimate power” constitutes either an appalling admission of civic illiteracy or a bold-faced attempt to sidestep accountability.
When all is said and done, however, it is supposed to be “we the people” who hold the real power—not the president, not Congress, and not the courts. As the Tenth Amendment proclaims, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The government’s purpose is to serve the people, not the other way around.
Those first three words of the preamble to the Constitution say it all:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
This is a government of the people, by the people and for the people.
This is not a monarchy with an imperial ruler. It is not a theocracy with a religious order. It is not a banana republic policed by a junta. It is not a crime syndicate with a mob boss. Nor is it a democracy with mob rule.
John W. Whitehead, Constitutional Attorney 