The approximately seven million people who came out across the U.S. to participate in Saturday’s “No Kings” protests are a testament to the fact that more Americans are waking up to the sobering reality that the presidency no longer operates pursuant to the rule of law.
Hopefully, this is just the beginning of a deep swell of resistance. A day or two of mass protests is hardly sufficient to stall the country’s dangerous trajectory into the burgeoning arms of an unlimited dictatorship.
To understand why, consider two disturbing questions that appear to have no good answers. First, what are Trump’s plans for the $75 billion in ICE funding that congressional Republicans gifted him this summer? Second, what has the Trump administration done with ICE detainees, who seem to have literally disappeared from public records and cannot be found by their families?
On the first question, an ICE “roadmap,” updated July 30, showed plans to use the $75 billion to double the number of detention beds by January 2026, to more than 107,000, through the creation of “mega-facilities,” “quick-build tent complexes,” and whole-family detentions. It reportedly plans to use parts of military bases and shuttered prisons as well.
On the second question, a crowd-sourced website called the United States Disappeared Record uses stories reported in the media to trace the whereabouts of 5,784 individuals the site claims were “disappeared by ICE” beginning on January 20, 2025. The data identifies individuals taken into custody by ICE or affiliated law enforcement organizations, those who were deported to their home countries or other places, those who remain in hiding, those who “self-deported,” and those who have died while in federal custody.
Finally, the site lists individuals whose location remains “unknown” or “null.” Of these, there are many. Although U.S. Immigration and Customs Enforcement hosts an “Online Detainee Locator System” that supposedly tracks the location of detainees in ICE custody for more than 48 hours, the Miami Herald reported in September that 800 of the nearly 1,800 men detained at the “Alligator Alcratraz” facility in Florida were missing from the federal database.
Third-country renditions appear to be ongoing. It was also reported last month that the list of third-country deportation sites now includes Uzbekistan and the tiny African country of Eswatini, which has been characterized as “the last absolute monarchy” in Africa. Known as Swaziland prior to 2018, Eswatini was flagged by the State Department in 2023 for arbitrary killings by security forces. Eswatini is now holding at least five U.S. deportees whom Homeland Security officials have labeled “depraved monsters” and “uniquely barbaric” while reportedly asking for $500 million in return.
At best, there thus appears to be insufficient public information about where some people have been taken by ICE. At worst, the U.S. government is engaging in the most horrific kind of human rights abuses imaginable: renditioning and disappearing people off the streets, with no trace of where they have gone or whether they are even still alive.
So far, both the Supreme Court and Congress are sitting on the sidelines. In June, the Court’s pro-Trump majority used an “emergency” petition to greenlight the administration’s deportation of detainees to countries to which they have no connection, despite its refusal to adhere to the Fifth Amendment’s Due Process Clause and the detailed statutory prerequisites for doing so. So the justices in the majority are evidently okay with extra-constitutional activity by the White House against potentially innocent civilians, at least for the time being.
Also in June, Rep. Pramila Jayapal (D-Wash.) held a shadow hearing on reports that individuals were being “kidnapped and disappeared to third countries such as El Salvador, Panama, Costa Rica, South Sudan, and Libya.” That seems about as far as Congress has gotten to date in terms of oversight.
In July, experts at the United Nations pushed back, declaring that under international law, “no one shall be sent anywhere where there are substantial grounds for believing that the person would be in danger of being subjected to serious human rights violations such as torture, enforced disappearance or arbitrary deprivation of life.” But the U.S. is not a party to the International Convention for the Protection of All Persons from Enforced Disappearance which went into effect in 2010.
In her opinion dissenting from the court’s “emergency” ruling allowing deportations to South Sudan without due process, Justice Sonia Sotomayor noted that the U.S. has accepted obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the existence of that convention didn’t persuade the majority to press the “pause” button on what could mean unlawful torture or death for countless unnamed people who, before their arrest and detention, were living within the jurisdiction of the U.S. and thus, in theory, under the protection of the U.S. Constitution.
In September, the Supreme Court majority also overrode a lower court’s injunction banning unconstitutional racial profiling by ICE officials. In a concurring opinion justifying another one of the majority’s “emergency” rulings for Trump, Justice Brett Kavanaugh underscored the “significance of the issue to the Government’s immigration enforcement efforts” and the “extremely high number and percentage of illegal immigrants in the Los Angeles area.” This is but another invitation for arbitrary lawlessness, and Trump knows it.
Last Friday, the administration filed yet another “emergency” appeal to the Supreme Court, this time asking it to authorize his sending of National Guard troops to Illinois based on a bogus claim that there is a “rebellion” in Chicago that makes local law enforcement unable to protect federal property and federal officers. The lower courts had issued an injunction against this maneuver.
As Steven Miller put it during a recent CNN interview, Trump’s theory of “plenary” presidential power is crystal clear. He is acting on it with impunity. Americans must do more to stop him.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why.”
