Similar actions by Prime Minister Viktor Orbán and the Fidesz party in Hungary—which has held a parliamentary majority for most of the past fifteen years—suggest that President Donald Trump’s invocation of the Alien Enemies Act of 1798 (“AEA”) and his subsequent defiance of a D.C. District Court pose a threat to democracy in the United States (“U.S.”).[1] Scholars have identified two avenues through which the political branches of the Hungarian government—and now the U.S. government—jeopardize the integrity of their democracies: using migration “crises” to ignore constitutionally guaranteed rights and undermining the judiciary.[2] The Fidesz government in Hungary is considered a “backsliding regime” due to its erosion of democratic structures and is frequently referred to as an example of “abusive constitutionalism.”[3] “Abusive constitutionalism” refers to the use of constitutional mechanisms to erode fundamental democratic structures (e.g., interfering with the independence of the courts through constitutional amendments).[4] This article compares recent actions by U.S. President Donald Trump to those taken by the Hungarian government—actions that have raised concerns from the United Nations (“UN”), the European Union (“EU”), and other international bodies committed to upholding democratic governance and the rule of law.[5]
On March 14, 2025, President Trump signed the invocation of the AEA and published it on March 20, 2025.[6] This 18th-century wartime act is the only lasting component of the Alien and Sedition Acts, all of which were enacted by a Federalist majority Congress in 1798 that was fearful of Jeffersonian Republicans, French allies, and French sympathizers.[7] The AEA allows the president to take extraordinary action—including deportation and indefinite detention—against nationals of a “hostile” nation or government with which the U.S. has declared war or that is perpetrating, attempting, or threatening to invade the U.S.[8] The AEA has been used three times in U.S. history: the War of 1812, World War I, and World War II.[9] Although the U.S. is not currently at war or being invaded by any nation, President Trump proclaimed on March 15th, 2025, that an “invasion” by the recently designated foreign terrorist organization (“FTO”), Tren de Aragua, justified invoking the AEA.[10]
In the early morning of March 15th, hours before President Trump’s proclamation went live on the White House website, the American Civil Liberties Union (“ACLU”) acted preemptively, filing to certify a class of individuals who may be subject to the AEA, and a temporary restraining order (“TRO”) against the government on the class’s behalf.[11] Due to rumors that President Trump planned to use the AEA to immediately send detained immigrants allegedly belonging to Tren de Aragua to a prison in El Salvador,[12] D.C. District Court Judge Boasberg held an emergency hearing at 5 pm on the same day that the complaint was filed and the proclamation published.[13] Judge Boasberg pressed the government lawyer during the emergency session for information on the rumored departure of the flights to El Salvador.[14] The government lawyer failed to provide the court with any information on the flights until the second half of the session, after two government planes filled with alleged Tren de Aragua members had already left Harlingen, TX, for El Salvador.[15]
While the planes were in the air, Judge Boasberg certified the class and granted the TRO, reasoning that the plaintiffs’ claim was likely to succeed on the merits, the plaintiffs would “suffer irreparable harm in the absence of emergency relief,” and that the public interest concerns weighed in favor of the plaintiffs.[16] Accordingly, the Court delivered an oral command to the government to comply with the court order immediately, even if it meant “turning around a plane or not [dis]embarking anyone.”[17] Nevertheless, both planes landed in El Salvador after midnight the following day, and the passengers were transported into the Centre for the Confinement of Terrorism (“CECOT”) in El Salvador.[18] Described by a UN official as a “concrete and steel pit,” CECOT is a mega prison the size of seven football stadiums known for its human rights abuses, from which no prisoner has yet been released.[19]
Acts that grant extraordinary power to a particular branch of government during times of emergency, such as the AEA, present risks to democracies because the rule of law does not have “a full impact on emergency politics.”[20] In other words, Constitutional guarantees are sometimes side-stepped in the case of emergencies.[21] The use of emergency powers, including power derived from migration “emergencies,” to erode the rule of law in recent Hungarian history is well documented.[22] In 2015, the Hungarian Parliament enacted legislation to address the “state of migration emergency” that imposed restrictions on constitutionally guaranteed rights.[23] However, since the “state of migration emergency” laws were passed as ordinary legislation, they did not adhere to the constitutional emergency mechanisms in place that preserve and guarantee certain individual rights in times of emergency, such as rights to life and human dignity, or the right to be free from torture.[24]
The “state of migration emergency” directed the Hungarian Defense Force to accompany normal law enforcement at the border and to remove “third-party nationals” who unlawfully entered or stayed in Hungary.[25] Although the legislation instructed that the act should only be used when a certain number of migrants arrived at the Hungarian border, it was renewed every six months for multiple years, even without sufficient arrivals.[26] The European Court for Human Rights and the UN High Commissioner for Refugees staunchly opposed these blatant violations of international refugee law.[27] Through “state of migration emergency” acts in Hungary and the AEA in the U.S., respective political branches of government in the respective countries addressed alleged migration crises by granting themselves the power to deny individual, constitutional rights to due process,[28] and openly violating international agreements prohibiting refoulement.[29]
In addition to the unconstitutional invocation and implementation of the AEA, President Trump and the executive branch outright challenged the power of the judicial branch by defying the court order to turn the planes around, evading judicial review of their actions by internationally incarcerating the plaintiffs.[30] Undermining the judiciary weakens the rule of law and significantly threatens democracy; without the judicial branch’s check on the other two political branches of government, party politics may effectively create law, rather than abide by it.[31] In other words, branches of government may advance political motives that violate the Constitution by undermining the judiciary, which lacks enforcement power.[32]
Over the last fifteen years, the Fidesz government has attacked the Hungarian judiciary causing the European Union and other advocates for democracy much concern.[33] In 2011, the Hungarian Parliament inserted a new provision into the Hungarian Fundamental Law prohibiting judges from remaining at their posts beyond retirement age (sixty-two).[34] Prior, judges were allowed to stay at their posts until age seventy.[35] This change effectively ousted about ten percent of all judges in Hungary.[36] The Hungarian Constitutional Court struck down the provision the following year, however, none of the dismissed judges were reinstated.[37]
Other attacks on the judiciary included reforming (and renaming) the National Judicial Council.[38] The reform allowed Parliament, a political branch of government, to elect a president for the now-called National Judicial Office who would serve as a “one-person decision-making body” for matters of judicial recruitment, promotion, management, and discipline.[39] Effectively, a political branch of government would elect a leader to be in charge of the only branch of government constitutionally designed to remain independent from the political arena.[40] The Fidesz government also affected public confidence in the courts outright—the Speaker of the Parliament delivered a keynote address where he publicly doubted the integrity of the courts by saying, “Today, the question is whether the Hungarian judges want to ensure the independence of the state.”[41]
Similarly, prominent public figures within or allied with the Trump administration publicly mocked the court order to return the planes to the United States on the social media platform X.[42] Bukele posted on X, “Oopsie, too late,” accompanied by a laughing emoji and a screenshot of a news site reporting on the court order.[43] Elon Musk, the well-known owner of X and senior advisor to President Trump, commented with a laughing emoji on Bukele’s post, demonstrating support for Bukele’s mockery of Judge Boasberg’s order.[44] Similarly, the U.S. Secretary of State, Marco Rubio, reposted Bukele’s post to his personal X account.[45] These actions, though seemingly harmless posts on a social media platform, may be insidious as they mock the actions of an individual acting within the scope of their power as a member of the judiciary. To conclude, drawing parallels between the Trump administration’s use of emergency powers and the Hungarian government’s gradual erosion of democratic norms highlights potential consequences of bypassing constitutional safeguards like due process. By understanding how democratic backsliding unfolded in Hungary, U.S. citizens may better understand the stakes involved and the importance of judicial authority and due process as essential aspects of a functioning democracy.
[1] Alien Enemies Act, 50 U.S.C. § 21; Tamás Hoffmann & Fruzsina Gárdos-Orosz, Populism and Law in Hungary – Introduction to the Special Issue, 47 Rev. Cent. & E. Eur. L. 1, 5 (2022); see also Gábor Mészáros, How the Misuse of Emergency Powers Dismantled the Rule of Law in Hungary, 57 Isr. L. Rev. 288, 289-90 (2024); Milterno JE, Čuroš P, Recent Attacks on Judicial Independence: The Vulgar, the Systemic, and the Insidious, in Judges Under Stress, 22 German L. J. (Special Issue) 1159, 1160 (2021).
[2] Mészáros, supra note 1, at 289-90; Nóra Chronowski et al., The Hungarian Constitutional Court and the Abusive Constitutionalism 3, (Gábor Kecskés eds., 2022).
[3] 20 Jan Petrov, How to detect abusive constitutional practices, Eur. Const. L. Rev. (2024); David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 208-12 (2013) (referring to subtle violations of democratic principles, including limiting horizontal checks on the majority).
[4] Landau, supra note 3, at 191.
[5] Hungary: Legislative changes threaten democracy and human rights, Comm’r of Hum. Rts. (2012), https://www.coe.int/en/web/commissioner/view/-/asset_publisher/ugj3i6qSEkhZ/content/hungary-legislative-changes-threaten-democracy-and-human-rights; European Commission Press Release IP//12/24, European Commission launches accelerated infringement proceedings against Hungary over the independence of its central bank and data protection authorities as well as over measures affecting the judiciary (Jan. 17, 2012); Dan Van Raemdonck, et al., Hungary: Democracy under threat 5 (Antoine Bernard eds., 2016).
[6] Proclamation No. 10903, 90 Fed. Reg. 13033 (2025).
[7] J.G.G. v. Donald J. Trump, No. 25-5067, 2025 U.S. App. LEXIS 7131, at *5-6. (D.C. Cir. Mar. 26, 2025).
[8] See Alien Enemies Act, supra note 1.
[9] Class Action Complaint and Petition for Writ of Habeas Corpus at ¶ 1, J.G.G. v. Donald J. Trump (D.D.C. Mar. 15, 2025).
[10] Proclamation, supra note 6.
[11] Class Action Complaint and Petition for Writ of Habeas Corpus, supra note 9, at ¶ 23.
[12] Id. at ¶¶ 64-65, 67 (asserting that plaintiffs are not members of Tren de Aragua).
[13] J.G.G. v. Trump, No. 25-766, 2025 U.S. Dist. LEXIS 71895, at *9 (D.D.C. Apr. 16, 2025).
[14] Id. at *10-13.
[15] Id. at *13-14.
[16] Order, J.G.G. v. Trump, No. 25-766, 2025 U.S. Dist. LEXIS 63647, at *3-4 (D.D.C. Mar. 28, 2025).
[17] J.G.G., 2025 U.S. Dist. LEXIS 71895, at *13-14.
[18] Id. at *15.
[19] Leire Ventas, Coming face to face with inmates in El Salvador’s mega-jail, B.B.C. News Mundo (Feb. 14, 2024), https://www.bbc.com/news/world-latin-america-68244963.
[20] Gábor Mészáros, Abusive Neo-Militant Democracy and the Case of the ‘State of Migration Emergency,’ in Populism and Migration 161, 168 (Éva Gedó & Éva Szénási eds., 2022).
[21] See id.
[22] Mészáros, supra note 1; see Mészáros, supra note 20, at 164.
[23] Mészáros, supra note 20, at 170.
[24] Mészáros, supra note 20, at 169-70; Hungarian government extends state of danger by 180 days citing migration crisis, Intellinews – Hungary Today (Sept. 7, 2023).
[25] 2020-76 Executive Summary Country Report: Hungary, U.S. Dep’t of State (2020).
[26] Mészáros, supra note 20, at 171.
[27] Id.
[28] Proclamation, supra note 5; Mészáros, supra note 1, at 292-95.
[29] U.N. Human Rights Council, The Refugee Convention, 1951, ¶ 33 (1951).
[30] Ethan Greenberg, Deportation Flights May End Up A Legal And Strategic Error, Law360, Mar. 20, 2025, https://www.law360.com/articles/2313612.
[31] Milterno JE, supra note 1, at 1160.
[32] Id.; See Marbury v. Madison, 5 U.S. 137, 177-78 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is”).
[33] European Commissioner Press Release, supra note 4, at 1-5; Raemdonick, supra note 5, at 5-6.
[34] Raemdonick, supra note 5, at 15-16.
[35] Id. at 16.
[36] Id.
[37] Id. at 17.
[38] Id. at 18.
[39] Id.; Milterno JE, supra note 1, at 1183-84.
[40] Raemdonick, supra note 5, at 18-20.
[41] Milterno JE, supra note 1, at 1179.
[42] Plaintiff’s Response to Defendants’ Notice at 5, J.G.G. v. Donald J. Trump, No. 1:25-cv-00766 (D.D.C. Mar. 17, 2025).
[43] Nayib Bukele (@NayibBukele), X (Mar. 16, 2025, 5:46 AM), https://x.com/nayibbukele/status/1901238762614517965.
[44] Id.
[45] Id.
