When Markwayne Mullin appeared before Congress Tuesday for the first time as homeland security secretary, Sen. Chris Murphy, D-Conn., asked a question Mullin should have had no trouble answering: Will the Department of Homeland Security follow federal court orders?
Mullin couldn’t give Murphy a straight answer (nor could he provide one to similar questions from Rep. Dan Goldman, D-N.Y., on Wednesday). The secretary repeatedly evaded questions, refused to commit to complying with the law and suggested DHS would abide by some court orders and ignore others supposedly based on “political opinion, not just the rule of law.”
While the administration has regularly described its immigration policies as upholding the rule of law, its actions tell a different story.
But that’s not how the rule of law works. This principle — that the government is constrained by legal rules promulgated publicly and enforced consistently — is foundational to American democracy. It is a key reason we have a government “of laws, and not of men,” as John Adams wrote 250 years ago.
Murphy’s question didn’t come out of nowhere. Earlier this year, a Republican-appointed judge found that Immigration and Customs Enforcement violated at least 96 federal court orders in Minnesota alone in less than a month.
While the administration has regularly described its immigration policies as upholding the rule of law, its actions tell a different story. At every step of the immigration enforcement process, the administration has repeatedly broken the law. ICE agents have conducted unconstitutional searches of private homes and made warrantless arrests, including of American citizens. An ICE memo asserted unprecedented authority to detain millions of long-term, law-abiding American residents without the possibility of bond. The government has carried out deportations without due process or any legal authority at all, and it has facilitated the imprisonment and torture of deported individuals abroad.
Throughout, the administration has ignored hundreds of court orders prohibiting the out-of-state transfer or removal of detained noncitizens and requiring bond hearings or the release of unlawfully detained individuals.
And even when the government has complied with court orders, it has done so begrudgingly and with extreme delay. When the administration finally returned Kilmar Abrego Garcia, the Salvadoran national wrongly deported to a notorious maximum-security prison in El Salvador, it targeted him for an illegal and vindictive prosecution. And more than six months after ICE deported Babson College student Any Lopez Belloza in violation of a court order, she still cannot return home or resume her studies because ICE has threatened to redetain and deport her the moment she lands.
When the federal government becomes a serial lawbreaker and refuses to be reined in by the judiciary, the damage extends far beyond the immediate victims. It corrodes public faith in institutions, weakens democratic norms and signals that legal compliance is optional for those in power. As Murphy warned, “That’s actually the end of our Republic.”
The administration is taking an already broken and outdated immigration system and degrading it even further.
The Trump administration is also subverting the rule of law in a more subtle way. People often use the term to refer to a sense that the nation is governed by a set of laws that people understand, that work, that are fundamentally fair and that people believe can and should be followed.
By adopting policies that create fear and chaos, the administration is taking an already broken and outdated immigration system and degrading it even further. This deliberate dysfunction only reinforces public perceptions that our immigration laws are unworthy of respect, both because they can’t meet the realistic wants and needs of American society, families and businesses, and because they are so fundamentally unfair to the individuals subject to its rules.
The answer to Murphy’s easy question is simple: Yes, court orders must be followed. The harder question is how we restore the rule of law in immigration.
To build a fair, humane and workable system, we can’t just rebuild what this administration has destroyed. America needs a generous, functioning legal immigration system responsive to the country’s changing needs. We need a humane and credible asylum and refugee system, not one that closes the door on everyone except white South Africans the current administration believes will be able to “assimilate” easily. We need proportionality, accountability and due process in immigration enforcement. And we need to create a legal pathway to citizenship for undocumented immigrants who have lived here for years and are woven into the fabric of American life.
America is a nation of immigrants and a nation of laws. If our immigration system fails to reflect both, we risk being neither.
Tom Jawetz is a senior fellow for immigration policy at the Center for American Progress. He served as deputy general counsel of the U.S. Department of Homeland Security from 2021 to 2022.