When We Choose Knaves
03-23-2025 When We Choose Knaves
Roger Berkowitz
I’ve cautioned about crying wolf regarding a constitutional crisis before. The recent decision by President Trump to invoke the Alien and Enemies Act of 1798 has again raised the spectre of a constitutional crisis. Once again, however, it is worth stepping back and letting the legal and political process function. The best essay on the question of whether there is a constitutional crisis is by Jed Rubenfeld. You can read it here.
The Alien and Enemies Act gives the President nearly unfettered power to expel non-citizens in times of war and the Supreme Court has given the President great leeway to determine what is and what is not a war. In the opinion for the Court in Ludecke v. Watkins, Justice Felix Frankfurter summed up the impact of the law and why judges should not interfere even when the law is being abused:
Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:
"All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people."
President Trump is neither a man of common honesty nor of common sense. He seems more than simply a knave. He is someone skilled at employing lawyers to ruthlessly manipulate the law for his advantage in business and now in government. We see this in his invocation of the Alien and Enemies Act as well as in his use of the law to bully and pressure universities and lawfirms to bow to his whims. What we are witnessing is less a constitutional crisis than a cold and cruel manipulation of existing laws to stoke fear that is shocking to our humanist sensibilities.
Fear is being mobilized to persuade non-citizens to leave the country and/or choose not to come. The President’s goal is not mine, but it is defensible. The means he is employing, however, are dangerous. Fear is a powerful force. When twelve million green card holders and tens-of-millions of legal visa holders suddenly fear that they can be swept up, arrested, detained, interrogated, and deported because of something they said about the President or some technical paperwork error from decades ago, fear will triumph over freedom.
The United States is a nation of immigrants. Under President Trump, every non-citizen in living, studying, and working amongst us is now turned into a suspect. Hannah Arendt worried about what happens when the entirety of the population is turned into suspects in a totalitarian state. That is not the case here and now. But the fact that so many millions of our neighbors are now being forced to live as suspects creates a consistent arbitrariness of the application of laws that, as Arendt warns, “negates human freedom more efficiently than than any tyranny ever could.”
That is why the case of Jasmine Mooney is so alarming. Mooney is Canadian and held a valid visa to work in the United States. But her visa was revoked for technical reasons when she tried to enter the country. She was told she had to apply for a new visa. When she did reapply at the San Diego border, she was detained, kept in a cell, cut off from the world, moved between detention centers and prisons, and disappeared for two weeks. Only when her friends and family mobilized the press was she finally released. Mooney describes her ordeal here:
For two days, we remained in that cell, only leaving briefly for food. The lights never turned off, we never knew what time it was, and no one answered our questions. No one in the cell spoke English, so I either tried to sleep or meditate to keep from having a breakdown. I didn’t trust the food, so I fasted, assuming I wouldn’t be there long.
On the third day, I was finally allowed to make a phone call. I called Britt and told her that I didn’t understand what was happening, that no one would tell me when I was going home, and that she was my only contact.
They gave me a stack of paperwork to sign and told me I was being given a five-year ban unless I applied for reentry through the consulate. The officer also said it didn’t matter whether I signed the papers or not, it was happening regardless.
I was so delirious that I just signed. I told them I would pay for my flight home and asked when I could leave. No answer.
Then they moved me to another cell — this time with no mat or blanket. I sat on the freezing cement floor for hours. That’s when I realized they were processing me into real jail.
I was told to shower, given a jail uniform, then fingerprinted, and interviewed. During one of the interviews, I begged for information.
“How long will I be here?”
“I don’t know your case,” the man said. “Could be days. Could be weeks. But I’m telling you right now — you need to mentally prepare yourself for months.”
Months.
I felt like I was going to throw up.
In prison and cut off from the world, Mooney talked to the 140 other women in the cells with her. Many, she writes, “had lived and worked in the U.S. legally for years but had overstayed their visas — often after reapplying and being denied. They were all detained without warning.” She writes
There was a girl from India who had overstayed her student visa for three days before heading back home. She then came back to the US on new, valid visa to finish her master’s degree and was handed over to ICE due to the three days she had overstayed on her previous visa. All of these women have been detained for time spans ranging from a few weeks to 10 months.
Mooney’s story is not unique. But the fact that someone with a Canadian passport, lawyers, resources, media attention, and friends, family, and politicians advocating for her release could be detained for nearly two weeks is horrific and fear-inducing. It is a window into the fear and terror that are being mobilized to satisfy President Trump’s desire to deport millions of people. And it is sad evidence once again of the cruelty of low-level bureaucrats working with Immigration and Customs Enforcement. The agents Mooney encountered were not monstrous or evil. One even asked Mooney if she believed in God and told her that as bad as the situation was, it must be part of God’s plan for Mooney. And yet, these agents working for the United States government kept Mooney isolated from the real world for 12 days. It is very much worth reading the entirety of Mooney’s account here. She writes:
It was surreal listening to my friends recount everything they had done to get me out — working with lawyers, reaching out to the media, making endless calls to detention centers, desperately trying to get through to ICE or anyone who could help. They said the entire system felt rigged, designed to make it nearly impossible for anyone to get out.
After some research, the reality became clear — ICE detention isn’t just a bureaucratic nightmare. It’s a business. These facilities are privately owned and run for profit.
Companies like CoreCivic and GEO Group receive government funding based on the number of people they detain. The more prisoners, the more money they make. They don’t lobby for stricter immigration policies in the name of national security — they do it to protect their bottom line.
CoreCivic made over $560 million from ICE contracts in a single year. GEO Group rakes in billions.
These companies have no incentive to release people quickly. Instead, they cycle detainees between facilities, profiting off every transfer, every additional day behind bars.
What I had experienced — what I had witnessed — was finally starting to make sense.
I wrote this essay to spread awareness, to spark compassion, and to remind people that silence is complicity. That when we see injustice, we have a choice — to look away or to stand up.
Even in the darkest places, within the most broken systems, humanity persists. And sometimes, it reveals itself in the smallest, most unexpected acts of kindness — a shared meal, a whispered prayer, a hand reaching out in the dark.
We may come from different backgrounds, speak different languages, and live different lives, but at our core, we are the same — human beings searching for connection, dignity, and hope.
The strength I witnessed in those women, the love they gave despite their suffering, is what gives me faith. Faith that no matter how flawed the system, how cruel the circumstances, humanity will always shine through.
This experience showed me that we are not defined by borders, paperwork, or bureaucratic labels. We are defined by the love we extend, the courage we summon, and the truths we are willing to tell — even when they are painful.
I wrote this not just to share my story, but in the hope that someone out there — someone with the power to change this — sees it, feels it, and can help do something. Because this is not just my story. It is the story of thousands and thousands of people still trapped in a system that profits from their suffering.
This is why I choose to tell their stories. Because when we choose to see each other — when we refuse to look away — we begin to build the world we all deserve.