But if it’s not wrong, then that is a useful answer. If the people who are committing crimes are a military force that is willing to use force to avoid being held accountable by law… questions that depend on the rule of law being in effect are missing the point. Laws need to be enforced by some kind of superior force to the people being subject to the law. Ideally that force is mutually agreed upon by society through some political process. Modern democracies are supposed to base that legitimacy on democratic will restrained by constitutional limitations. But clearly that doesn’t strictly need to be the case for a state to operate. The most base level of political legitimacy for the use of force to govern is the mere unwillingness of the population to use their own violence to counter it. If things ever got bad enough, the thing that keeps that in check is ultimately organized resistance and revolution.

Going back to liberal democracy though, even with all of our theoretical restrictions on power, ultimately all of that only works based on some combination of the government believing in and choosing to follow those principles and if all else fails… revolution. Just think about how historically significant the first ever peaceful transition of power was. The people with all the guns just decided not to use them to keep their power. If they decided otherwise… what was a judge going to do about that? Write a strongly worded opinion paper? Then what? In order for anything to happen either the gov needed agree or enough other people with guns would have to organize to do something about it. Even if you have some police force to represent the courts independent of the main government, that police force needs to be full of people who agree with the rule of law and they have to be strong enough to enforce that court decision.

So getting back to our situation… if the main government and the military and police under its direct control has decided that the rule of law isn’t important to it, then even if you can point to the laws they’re breaking and get the courts to rule against them… you need to answer the question of who is going to make those court decisions a reality. If it isn’t going to be ICE, the US Military, or any of the other organizations engaged in the illegal activity, then it needs to be someone else and at that point it’s a war and the laws don’t really matter anymore anyway.

So that’s the decision tree for this question. If you think the government isn’t entirely run by fascists, then we can discuss the legal question. If your answer is that the government is corrupt and fascist, then answering the legal question is producing answers that are inherently incorrect and misleading. If you do genuinely believe the opposite, then yes, just giving the fascist answer is incorrect and misleading. In either case, the path we go down, if incorrect, leads us away from the more productive conversation. But the question of which of these two answers is the correct starting point for the interesting and necessary discussion.