Trump's doctrine that power equals fear is cascading through US society

Venezuelan migrants arrive on a flight after being deported from the US, in Caracas, Venezuela, on March 24. Reuters

Several years ago, veteran journalist Bob Woodward asked US President Donald Trump to define power. He replied "real power is – I don't even want to use the word – fear".

Perhaps the large group of senior administration officials involved in inadvertently adding Jeffrey Goldberg, editor-in-chief of the Atlantic magazine, to a bizarre and arguably unlawful discussion on Signal, the smartphone app, of detailed planning for a US military strike in Yemen, are currently experiencing how that works. Even if they are not, many Americans dealing with the current administration are enduring Mr Trump's understanding that instilling fear is the essential attribute of holding and exercising political power.

Mr Trump has never hidden his strongman tendencies. And given the enormous degree of arbitrary power that Congress has yielded to, or bestowed upon, the presidency over the past century – particularly since the Second World War – his discretionary authority is indeed awesome. But there are still significant limitations, or checks and balances, built into the US system. They are likely to be tested as never before during his second term.

Demonstrators protest against the deportation of Venezuelan migrants from the US to El Savador, in Caracas. EPA

The most significant confrontation is an already developing tension, pitting Mr Trump's determination to impose his will on virtually all forms of government authority against the restraints that courts will inevitably attempt to impose upon his dictates.

The collision between arbitrary administrative actions by the White House and existing legal limitations is already under way, and the pending test case will do much to indicate whether courts will be obeyed and, therefore, the rule of law prevail in the US.

Mr Trump has begun what he knows will be a decisive struggle in a crafty manner. The administration is attempting to deport over 200 Venezuelans it accuses of being members of a criminal organisation called Tren de Aragua. They could hardly have chosen a less sympathetic target, although the total lack of due process – or any process whatsoever – in the identification of these people raises serious doubt about how many of them are members.

The administration is invoking the rarely used Enemy Aliens Act, an 18th century law that permits the government to deport citizens of a country at war with the US without normal due process. To get around the fact that the US is not in a declared war with any country, and certainly not Venezuela, the Trump administration is arguing that the gang is, in fact, "a hybrid criminal state" that has invaded the US. Calling this a stretch is being charitable. Several judges have, naturally, been extremely sceptical of these claims and their legality.

On March 15, the administration moved quickly and in almost total secrecy to invoke the law and whisk the men off to a vast and terrifying prison in El Salvador, which had agreed to accept them.

Later that day, US district judge James Boasberg issued a temporary restraining order blocking the removals on the grounds that these individuals have a legal right to challenge this identification, and the basis for invoking the law under these circumstances.

Upon learning two airplanes were already in the air carrying them away, Judge Boasberg ordered the planes to return. The administration refused, claiming the order came too late, and since the flights were already over international waters, the order wasn’t applicable.

The administration insists it is not defying the court, but it plainly is. The judge is demanding further information about the flights and the people on them, but the administration is refusing, citing another rarely used legal provision "the state secrets privilege", maintaining that the White House has no obligation to release information regarding "terrorists" to any party, including a federal judge. It essentially claims that sharing any further facts with him could damage national security by making other countries less willing to share information with the US.

In a hearing over the standoff, another judge noted that suspected Nazi agents arrested during the Second World War got "better treatment" than the accused Venezuelan gang members.

The legality of the Enemy Aliens Act and even the state secrets privilege aren't being disputed. It's just very difficult to see how they can legitimately apply to this matter. A gang is obviously not a state and US intelligence assessments flatly contradict administration claims that Tren de Aragua is operating at the direction of the Venezuelan government.

Venezuela's Interior Minister Diosdado Cabello on the day migrants arrived in Caracas after being deported from the US. Reuters

But this is merely an initial test of the Trump administration's ability to stretch or arbitrarily redefine the law and, most importantly, ignore court rulings. Mr Trump's doctrine that power equals fear is cascading through US society as corporations, universities, law firms, media groups and others are scrambling to conform to his worldview, attitudes and even preferred language. Washington, in particular, has been seized by an unprecedented fearful and toxic atmosphere.

Ultimately, though, considering the Republican majorities in both houses of Congress, courts are best positioned – at least until the midterms – to thwart the arbitrary and unlawful use of authority, protect crucial checks and limitations on White House power and preserve the rule of law.

No one knows what will happen if, or more likely when, the Trump administration decides to ignore court orders that go more directly to basic issues of governance and involve parties more sympathetic than accused Venezuelan gang members.

The two most significant unanswered questions are: will the Supreme Court uphold the rule of law or cave in to Mr Trump's likely forthcoming defiance of lower court orders, and will the rest of the government co-operate with him if he attempts to dismantle central pillars of the US constitutional structure to render his authority virtually irresistible? Mr Trump briefly sought to usurp Congress's constitutional authority over government spending, only to quickly back down. But he may well try again, more carefully and with a better plan.

The courts will need significant support to defend the constitutional system of checks and limitations. If not Congress, then state and local elected governments, unelected administrators, and, if need be, even mass protests may be required to overcome fear and salvage the rule of law.

The US appears headed for an unprecedented constitutional crisis between the executive and the judiciary. Mr Trump may think only he can enforce decisions. He may be surprised to discover other forms of power he doesn’t expect. But as things stand today, American fear is ubiquitous.