The Sunday News | California Construction Law Blog

If you’re looking for a construction law post, this isn’t it.

This Sunday morning I woke up to the news that the Trump administration deported over 200 suspected Venezuelan gang members to El Salvador, despite a federal judge’s order temporarily barring the deportations. This may seem like just another news article in the seemingly nonstop deluge of new articles since the new administration took office. As a lawyer, and as an American, I think this is different.

Here’s the facts as we know it:

1. The Proclamation: On Saturday, March 15, 2025, President Trump issued a proclamation, “by the authority vested in me by the Constitution and the laws of the United States of America, including the Alien Enemies Act, 50 U.S.C. 21 et seq.,” that directed the U.S. Attorney General and the Secretary of Homeland Security to “apprehend, restrain, secure, and remove” suspected members of the Venezuelan gang Tren De Aragua. The proclamation states that members of Tren de Aragua “have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States” including “murders, kidnappings, extortions, and human, drug and weapons trafficking.”
2. The Lawsuit: Later that same day, a federal civil lawsuit was filed by the American Civil Liberties Union, Democracy Forward and ACLU of the District of Columbia on behalf of five Venezuelan men in immigration custody in Texas and New York, arguing that President Trump does not have the authority to deport the suspected Venezuelan gang members under the Alien Enemies Act. The Alien Enemies Act, which enacted in 1798,  has only been used on three occasions, during the War of 1812 against British nationals, during WWI against nationals of the Central Powers, and during WWII to intern Japanese-Americans, and, according to the lawsuit, has only been used when the United States was in an “actual or imminent war” with a “foreign nation or government.”
3. The Order: That evening, in response to a motion for temporary restraining order filed by the Plaintiffs, James Boasberg, Chief Justice of the D.C. District Court, issued a temporary restraining order barring the Trump administration from deporting the five individuals, which was later expanded to include immigrants sought to be deported by the Trump Administration under the Alien Enemies Act. Following the hearing, the U.S. government filed an appeal of the decision.
4. The Flight: According to reports, the hearing which resulted in the temporary restraining order began at 5:00 p.m. on Saturday. During the hearing, Judge Boasberg asked the U.S. government attorneys whether any deportations were imminent in the next 24-48 hours, to which they responded that they could neither “confirm or contest” whether any deportations were imminent. Judge Boasberg then ordered a break in the hearing until 6:00 p.m. for the government attorneys to determine if any deportations were imminent. At 5:45 p.m. a flight with the suspected gang members took off from Harlingen, TX for San Salvador, El Salvador at 5:45 p.m. At 6:52 p.m., after learning of the flight, Judge Boasberg ordered U.S. Government to turn around any planes carrying immigrants being deported under the Enemy Aliens Act. At 7:02 p.m. the flight arrives in San Salvador, El Salvador.

As of the time this post was written there has been no official response from the U.S. Government. However, Nayib Bukele, El Salvador’s President, who is being paid $6 million by the U.S. to keep the suspected gang members in jail for one year, in a post on X today (Sunday) responding to a news article regarding the temporary restraining order, wrote “Oopsie . . . Too late.“

For some, this might seem like just like another news item that will just as quickly be replaced by another. It likely will be. For others, the details may read a bit like a reality tv show or opening to a B-rated political thriller. And they do. And for others this post may read like yet another woke, anti-Trump diatribe. It’s not.

It’s an anti “anyone-who-would-do-this-kind-of-thing” post. And as Americans I believe we should not dismiss this news or treat it lightly. I believe there is a reason why all of this occurred during the weekend when the regular news cycle is sleeping. I believe there is a reason why this involves a relatively small number of undocumented immigrants among the estimated 11 million undocumented immigrants living in the United States. And I believe there is a reason why this involves suspected members of a foreign gang.

It’s so that we don’t care. But we should. We should care deeply. Because I believe it marks the first telltale signs of a war that may potentially tear this country apart at the seams. We’ve all read (and seen) the Oval Office meeting between Ukrainian President Volodymyr Zelensky, President Trump, and Vice President Vance. We’ve read about the firings by DOGE. And we’re seeing the impacts of President Trump’s tariffs (at least on the stock market). All of these things involve important public policy issues. What occurred today, however, is fundamentally different. It involves something fundamental to the very fabric of our country: The rule of law. 

John Adams is often paraphrased as saying that we are a “country of laws, not kings” (Adams actually said we are “a government of laws, and not men” and, apparently, he took it from a guy named James Harrington). Checks and balances, as we all learned in school, is the means by which we secure the rule of law. Congress enacts the laws, the Executive branch applies the laws, and the Judicial branch interprets those laws. Harrington, who I need to read more about, used the metaphor “two girls cutting a cake. One cuts and the other chooses, making a fair division likely.”

As Americans we take this for granted, yet, it must be jealously guarded. Why? Because the rule of law is a social construct, the so-called “social contract,” that depends on everyone agreeing that those are the rules we agree to abide by. Once someone decides not to play by those rules, in particular those with power, this social contract ends.

Let me give you an example. I was once involved in a real estate case involving a partnership. Like many partnerships there was the “money” guy and the “sweat-equity” guy. The partners got along swell at first. Then they didn’t. What they were fighting about isn’t important. What is more important, is that the sweat-equity guy, and his counsel at the time, refused to comply with anything and their overall strategy seemed to simply be fight, fight, fight. They refused to respond to discovery. They filed numerous motions. They made arguments that didn’t comport with the law or accurately represent the facts.

In short, it was a hard-fought case. But many cases are like that. What made this case unusual is that while the case was ongoing, the sweat-equity guy’s attorney withdrew as counsel, leaving the sweat-equity guy to represent himself personally or in pro per. This is when things got really wild. The sweat-equity guy filed pleadings that weren’t permitted. His pleadings were nearly impossible to understand. And, as a result, he lost. Again and again. 

The thing is, he never complied with a single court order. The court would order him to produce documents. He didn’t. The court would order him to allow access to the property. He would lock it up. He was ordered to pay monetary sanctions by the court. He didn’t pay. Ultimately, I had to ask the court for a bench warrant to ask that he comply with the court’s orders or be taken into custody. Unfortunately, he used a P.O. Box and he had such a common name there was no way to find him. When I complained to the court, the judge basically told me, “Mr. Murai, what would you have me do, go out and track down the guy and have him arrested personally?”

It was then that it dawned on me. The rule of law is fragile. It depends on everyone playing by the same rules. And if someone doesn’t, well, you’re basically left with anarchy. And in anarchy, only the strongest  survive. Despots do well in those kinds of environments. It’s also why sooner or later even depots are overthrown. It’s why revolutions occur, whether in our own, or in other countries.

Whether this latest event was in fact just an “Oopsie” is something we’ll have to wait and see. I’m concerned that it isn’t. I’m concerned that it’s a resilience test on checks and balances along the lines of “you and what army?” If it is, we will surely lose. The Judicial branch doesn’t have an effective enforcement arm. It has the U.S. Marshal’s Service but it’s under control of the Department of Justice. Both houses of Congress are currently controlled by Republicans, and even if they weren’t, Congress has no enforcement arm at all.

In short, our entire system of government relies on everyone acting in accordance with the rule of law. And if the rule of law is no longer the proverbial “law of the land,” then God help us all.