The other day, I got to thinking about why the Department of Homeland Security could unilaterally change immigration laws so that people who were legally in the country one day were classified as illegal immigrants the next. To me that seemed so at odds with the ex post facto clause in the Constitution.

The answer to that question is a bit frightening.

While the Constitution prohibits specifically retroactive laws (Article I, Section 9, Clause 3), this prohibition applies only to criminal cases, not civil matters, and immigration is considered a civil matter, even when the government is using criminal justice mechanisms, such as incarceration facilities and police powers, or carrying out actions like deportation or visa revocation.

Despite the fact that immigration is considered a civil matter, illegal immigration is made a federal crime in the United States, primarily through 8 U.S.C. § 1325 (Improper Entry by Alien) and 8 U.S.C. § 1326 (Reentry of Removed Aliens)

The classification of immigration as a civil matter is not addressed in the Constitution, but was established by in Fong Yue Ting v. United States, 149 U.S. 698 (1893). This ruling also determined that deportation is not “punishment” in the legal sense, but rather the government’s refusal to allow someone to remain, and because they are not considered “punishments,” Congress or the Executive Branch can retroactively apply new immigration grounds for exclusion, even if those grounds did not exist when the non-citizen entered the country. In addition, statutes, such as those that make past criminal activity grounds for deportation (e.g., membership in certain organizations or criminal behavior), can be applied to actions taken before the law was passed.

So, if every major law dealing with unauthorized immigration is a criminal statute, how can immigration enforcement be a merely civil matter?

As a side note, while subsequent Supreme Court decisions have maintained the legal fiction established by the Fong Yue Ting precedent, I can’t find any legal reason why Congress couldn’t pass a law declaring that any immigration proceedings should be considered as criminal matters, given that the government is already treating them that way, except without many of the procedural safeguards required Constitutionally in criminal proceedings involving U.S. citizens.

In 1915, Amy Lowell wrote a poem entitled “Patterns,” most likely set in the time of The War of the Spanish Succession, about love constrained and lost by adherence to patterns, particularly social patterns and patterns of expectation.

Patterns are everywhere in nature, simply because patterns are a form of order, and life, and even the universe, requires order. But the closing line of Lowell’s poem asks, “Christ! What are patterns for?” A strong poetic suggestion that patterns in excess are anything but good.

In a very different context, laws attempt to impose patterns. Those patterns are meant to create societal order, but enforcing laws in excess can be tyranny. That’s one reason most societies have legal procedures and courts – to determine how the patterns of law should be imposed, and in what instances that such patterns should not blindly apply.

In dictatorships and authoritarian societies, patterns are imposed absolutely, and too often now, ICE is following that example here in the U.S.

The problem with ICE and its actions lies in the working assumption that anyone not legally in the United States is de facto a criminal and evil, and that they all can be treated in the same way.

What makes this worse, and I’d say evil, is that the Trump Administration, with various strokes of the pen, have turned tens of thousands of people who were here legally one day into illegals the next by revoking various policies of past administrations, ranging from broad cancellations of student visas to revoking work permits for refugees and others, and removing amnesty protections.

ICE agents are also too often applying a specific pattern (skin color) in initially approaching and detaining individuals.

Lowell’s question applies even more today. Exactly what are patterns (or laws) for?

Theodore Roosevelt often referred to the Presidency as a “bully pulpit,” meaning that it was a powerful platform to shape public opinion and advocate for his agenda, but Roosevelt used the word “bully” in its original meaning of “superb” or “wonderful.”

Unfortunately, Donald Trump is just using the Presidency to bully anyone who disagrees or opposes him, and too many federal officials, particularly Kristi Noem, Pam Bondi, and Pete Hegseth, are following that example.

The ICE agent who killed Renee Good didn’t shoot her because she attacked him, but because she politely “disrespected” him… and neither ICE nor DOJ will even look into charging that agent for murder. Death for polite disrespect, and not even a hint of interest in justice? Not to mention baldly lying about the actual circumstances of the shooting.

Pete Hegseth is gunning for Senator Mark Kelly for quoting a part of longstanding military doctrine that Hegseth doesn’t like, possibly because Hegseth follows the Nixon doctrine that no command by the President can be illegal. Trump is going after Jerome Powell, whom he originally appointed, because Powell won’t push for lower interest rates the way Trump wants. Trump’s also trying to punish any city or state that voted against him. He even took away aid for a water pipeline in Lauren Boebert’s district (one of his strongest MAGA representatives in Congress) because Colorado hasn’t “fallen in line.”

There are scores of other examples, large and small, and far too many Americans seem indifferent to what’s happening… at least until it affects them.

No one and no country is off-limits. Right now, Denmark and Greenland are targets because they understandably don’t want Greenland purchased or annexed by the U.S. Earlier, Trump targeted Canada because Canadians don’t want to be “the fifty-first state” and because Ottawa put up large posters declaring, “Tariffs Are a Tax on Hard-Working Americans,” reminding Americans that Trump is part of the cause of higher U.S. prices.

If you’re a public figure and you say or write something that Trump and his lackeys don’t like (especially if it’s true), you risk having your life torn apart, if not worse. And heaven forbid you try to point out, even politely, illegalities to ICE.

I much prefer Theodore Roosevelt’s “bully pulpit” to Trump’s… and so should thoughtful Americans.

As regular readers of my blog doubtless know, I try hard to look at the facts in a given situation, all of the facts, if possible, rather than just those facts that support my beliefs or values. This can be difficult when you’re evaluating actions by Trump and his followers, because they have a continuing tendency to misrepresent facts, or to ignore those which are inconvenient or which conflict with their objectives.

I won’t use the terms “beliefs” or “values” with regard to Trump and company because either term implies a consistency which appears lacking in Trump and most Trumpists, with the exception that everything that Trump does or supports appears designed to increase his own personal power. Add to that the apparent fact that Trump has no fixed beliefs or values, except narcissistic self-interest, and the fact that a large segment of his followers appear to accept whatever he says as fact, even when hard and/or visual evidence contradicts what Trump has declared to be true.

When federal law enforcement agents, such as those in ICE, ignore due process, Constitutional rights, and shoot individuals who have not threatened them or who have questioned the legality of ICE actions, and Trump supports those actions as legal, it should be clear to all Americans that the basics of law and order are being trampled.

When Trump uses federal investigations as a weapon of intimidation and effectively repudiates the Constitution and the right-wing-dominated Supreme Court finds ways to support Trump or to avoid addressing the underlying issues, it becomes more and more obvious that Trump, his lackeys in government, and his supporters have little interest in either law or morals.

The great danger of this situation is that those opposing Trump may decide that facts and words – and even votes – are insufficient in stopping his erosion of legal process and human rights, and that they will have to resort to force in order to preserve those rights.

Doesn’t anyone recall the results of the past attempts of arrogant white males to impose and maintain power through various forms of dubious legal inequality?

If the news reports are accurate, the United States used more aircraft and ships to “extract” Nicolas Maduro from Venezuela than it did on the mission to destroy Iran’s nuclear capability.

While the Trump administration insists that removing the head of state from his own country was in pursuit of a criminal, which Maduro doubtless is, attacking and kidnapping a head of state runs perilously close to an act of war, particularly when the removal required such massive forces.

Under federal law, eight bipartisan, senior members of Congress must receive prior notice of sensitive covert actions. In June 2025, the administration told Republicans, but not Democrats, in advance about the forthcoming U.S. strike on Iranian nuclear facilities. For the Venezuela operation, it appears no lawmakers were notified in advance.

Trump insists that the need for secrecy overrode existing law.

What that means is that Trump believes that he can ignore existing law any time he thinks it’s necessary, and I’m fairly certain that the framers of the Constitution didn’t have that in mind.

In addition, Hegseth is now attempting to reduce Senator Mark Kelly’s retirement pay from his service as Naval officer and to censure Senator Kelly for his statement that military officers have a duty not to obey illegal orders. Although Senator Kelly is a former Navy captain and astronaut, his statement was, first, an opinion in line with what all officers are taught, and, second, made as part of Kelly’s position as a senator.

When the Secretary of Defense attempts to punish a retired officer – and sitting Senator – because the Senator disagrees with the Administration, Hegseth’s actions are against both long-standing precedent and the U.S. Constitution, as well as a sign of the contempt both Trump and Hegseth have for the Constitution and the laws supporting it.

Equally unfortunate is the failure of Republicans in the House and Senate to oppose the continuing disregard for the Constitution and the very laws passed by Congress to rein in Presidential overreach.

What good are laws if those controlling Congress allow the administration to break them at will?