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On Friday, President Donald Trump delivered an unusual speech at the Justice Department. Between fulminating against his political adversaries and long digressions about the late basketball coach Bob Knight, Trump declared, “We’re restoring fair, equal, and impartial justice under the constitutional rule of law.”

Then his administration spent the weekend proving otherwise.

People who believe the press is overhyping the danger to rule of law posed by the current administration have pointed out that although administration officials have repeatedly attacked the judicial system, the White House has not actually defied a judge.

But that may not be the case anymore, or for much longer. On Saturday in Washington, D.C., Judge James Boasberg issued a temporary restraining order barring the federal government from deporting Venezuelan immigrants to El Salvador, which it was seeking to do using a 1798 law that bypasses much due process by declaring an enemy invasion. Nonetheless, hundreds of Venezuelans alleged by the administration to be connected with the gang Tren de Aragua landed in El Salvador, where authoritarian President Nayib Bukele has agreed to take them. Separately, a federal judge in Massachusetts is demanding to know why Rasha Alawieh, a Lebanese doctor at Brown University’s medical school, was deported despite a valid visa and a court order temporarily blocking her removal.

The White House insists that it did not actually defy Boasberg’s judicial order, but its arguments are very hard to take at face value. “The Administration did not ‘refuse to comply’ with a court order,” White House Press Secretary Karoline Leavitt said in a statement. “The order, which had no lawful basis, was issued after terrorist [Tren de Aragua] aliens had already been removed from U.S. territory.” She’s trying to have it both ways—the order is unlawful, but also we didn’t ignore it. “The written order and the Administration’s actions do not conflict,” Leavitt said.

Although Boasberg’s written order did not specify, the judge told attorneys during the Saturday hearing that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” Politico reports that the plane left during a break in the hearing, as though the government was angling to get out just ahead of any mandate. During a briefing today, Leavitt also questioned whether the verbal order held the same weight as a written order, which is a matter of settled law. During a hearing early this evening, Boasberg seemed incredulous at the Justice Department’s arguments, calling one a “heck of a stretch.”

In the Boston case, a Customs and Border Protection official said in a sworn declaration that the agency had not received formal notification of the judge’s order when it deported Alawieh. CBP said in a statement yesterday that “arriving aliens bear the burden of establishing admissibility to the United States.”

The statements of Trump administration officials elsewhere make it even harder to take their actions as anything other than attempting to defy judges. Salvadoran President Bukele posted a screenshot of a New York Post story about the judge’s order on X with the commentary, “Oopsie … Too late” and a laughing-crying emoji. Chief Bureaucrat Elon Musk replied with the same emoji, and Secretary of State Marco Rubio shared Bukele’s post from his own account. “Border czar” Tom Homan appeared on Fox News this morning and said, “We’re not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming.”

These actions should be terrifying no matter who is involved. The fact that Tren de Aragua is indeed a vicious gang doesn’t nullify the law—the administration’s claim that the U.S. is contending with a wartime invasion is ridiculous on its face. Even more important is whether the White House decided to snub a ruling by a federal judge. Nor do customs officials’ claims in court filings that they found “sympathetic photos and videos” of Hezbollah leaders on Alawieh’s phone, or that she told them she had attended the Hezbollah leader Hassan Nasrallah’s funeral, mean the law doesn’t apply. For all we know, her actions may well justify her deportation. (Of course, we have little way of assessing any of these allegations clearly, because the administration has sidestepped the usual judicial proceedings in both cases. A lawyer for Alawieh’s family hasn’t commented on the allegations.) What matters is that the executive branch acted despite a judge’s order.

This is what we might call the Mahmoud Khalil test: No matter whether you think someone’s ideas or actions are deplorable, once the executive branch decides it doesn’t have to follow the law for one person, it has established that it doesn’t have to follow the law for anyone. After Khalil was arrested, Trump said that he was “the first arrest of many to come.” No one should have any illusion that the list will stop with alleged Tren de Aragua members. Throughout his career, Trump has tested boundaries and, if allowed to do so, pushed further. His actions at the start of this term show that he is more emboldened than ever, and traditionally institutionalist figures such as Rubio seem eager to abet him.

Watching Trump’s DOJ address, supposedly about law and order, offers some ideas of who else he might target while ignoring the law. So do his social-media accounts. This morning on Truth Social, Trump claimed that former President Joe Biden’s pardons of Liz Cheney and other members of the House January 6 Committee were not valid. “The ‘Pardons’ that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen,” Trump wrote. “In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them!”

Trump wouldn’t bother with this if he didn’t hope to prosecute the people involved. Although Biden’s pardons were controversial because they were issued preemptively, the idea that an autopen, which allows the user to sign remotely, would invalidate them is concocted out of thin air. (Nor has Trump provided evidence that Biden did in fact use an autopen in these cases.) The Justice Department’s Office of Legal Counsel wrote a justification for the practice in 2005, and presidents have been using them to sign legislation since 2011, without serious incident. The Supreme Court could conceivably rule in favor of Trump’s view—the justices have adopted other long-shot Trump claims—but it is hard to imagine, and would be a real departure.

When Trump speaks about law and order, he means it very narrowly. He believes in swift justice for his adversaries, with or without due process of the law; meanwhile, he believes his actions should not be constrained by law, the Constitution, or anything else that might cause him problems, and he has used pardons prolifically to excuse the actions of his friends and allies, whether Paul Manafort and Roger Stone or January 6 rioters. Plenty of presidents have been frustrated by the limitations of the law. Richard Nixon even claimed, years after leaving office, that any action by the president, as head of the executive branch, is de facto legal. But no president until now has so aggressively or so frequently acted as though he didn’t need to follow the law’s most basic precepts.

Back in November, my colleague Tom Nichols invoked the Peruvian politician Óscar Benavides. Though he’s little known in the United States, here are a few striking facts about him: He served as president twice, first coming to power not through a popular election but through appointment by an elected assembly. Some years later, he returned to the presidency as an unabashed authoritarian. (Hmm.) “For my friends, everything; for my enemies, the law,” goes a quote sometimes attributed to Benavides. It could be the motto of the Trump administration over the past four days.

Related:

The ultimate Trump story Mahmoud Khalil’s detention is a trial run.

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Franklin Foer on Columbia University’s anti-Semitism problem The lesson Trump is learning the hard way How Republicans learned to love high prices

Today’s News

At least 42 people died after a powerful storm system hit central and southern U.S. states over the weekend, according to officials. The Energy Department, EPA, and NOAA started hiring back probationary employees after federal judges recently ruled that their firings were illegally carried out and ordered their reinstatement. Donald Trump and Russian President Vladimir Putin are scheduled to speak on the phone tomorrow about a cease-fire with Ukraine. Trump said yesterday that he expects the conversation to include discussions about Ukraine’s power plants, and that there have already been talks about “dividing up” Ukrainian assets.

Dispatches

Work in Progress: “Buy, Borrow, Die”—this is how to be a billionaire and pay no taxes, Rogé Karma writes. The Wonder Reader: Finding love has never been easy, but this is a particularly tricky moment for romance, Isabel Fattal writes.

Explore all of our newsletters here.

Evening Read

Illustration by Jonelle Afurong / The Atlantic. Sources: Marsell Gorska Gautier / Getty; naumoid / Getty.

Sex Without Women

By Caitlin Flanagan

What a testament to man—how noble in reason, how infinite in faculties!—that he continued doing anything else after the advent of online porn. Plenty of women, of course, consume and enjoy or create and profit from porn—people of every sexual orientation and gender identity do. But the force that through the green fuse drives the flower (and the money) is heterosexual male desire for women. And here was porn so good, so varied, so ready to please, so instantly—insistently—available, that it led to a generation of men who think of porn not as a backup to having sex, but as an improvement on it. They prefer it.

Read the full article.

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Batter up. Why aren’t women allowed to play baseball? They’ve always loved America’s pastime—but it’s never loved them back, Kaitlyn Tiffany writes.

It’s as easy as … Riding an e-bike. Getting around on one might be a bit slower than in a car, but it’s also “transformed my family’s life,” Elizabeth Endicott writes.

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Stephanie Bai contributed to this newsletter.

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Less than a month into the second Trump administration, the White House began publicly toying with the idea of defying court orders. In the weeks since then, it’s continued to flirt with the suggestion, not ignoring a judge outright but pushing the boundaries of compliance by searching for loopholes in judicial demands and skirting orders for officials to testify. And now the administration may have taken its biggest step yet toward outright defiance—though, as is typical of the Trump presidency, it has done this in a manner so haphazard and confused that it’s difficult to untangle what actually happened. But even amid that haze, so much is very clear: Donald Trump’s most dangerous tendencies—his hatred of immigrants; his disdain for the legal process; his willingness to push the boundaries of executive authority; and, newly, his appetite for going to war with the courts—are magnifying one another in a uniquely risky way.

The case in question involves Trump’s invocation of the Alien Enemies Act to accelerate deportations of Venezuelan migrants without going through the normal process mandated by immigration law. The statute, which is almost as old as the country itself, has an unsavory pedigree: It was passed in 1798 along with the notorious Alien and Sedition Acts, part of a crackdown on domestic dissent in the midst of rising hostilities between France and the fledgling United States. Before this weekend, it had been used only three times in the country’s history. On Friday, at a speech at the Justice Department—itself a bizarre breach of the tradition of purportedly respecting the department’s independence from the president—Trump hinted that he would soon be invoking the statute, this time against migrants whom the administration had deemed to be members of the Venezuelan gang Tren de Aragua.

From here, the timeline becomes—perhaps intentionally—confusing. At some point over the ensuing 24 hours, though it remains unclear exactly when, Trump signed an executive order to that effect. Before that order was even public, the ACLU filed suit in federal court seeking to block the deportation of five Venezuelans who it believed might be removed. (In a sickening twist, several of the plaintiffs say they are seeking asylum in the United States because of persecution by Tren de Aragua.) By 5 p.m. on Saturday, Judge James Boasberg of the U.S. District Court for the District of Columbia had convened a hearing over Zoom. Things had happened quickly enough that the judge apologized at the beginning of the hearing for his casual appearance; he had departed for a weekend away without packing his judicial robes.

[Read: ICE isn’t delivering the mass deportation Trump wants]

Thanks to the Alien Enemies Act’s age and sparse use, many of the legal questions around its invocation are novel, and Boasberg admitted to struggling to make sense of these issues so quickly. The broad authority to rapidly remove noncitizens clearly appealed to Trump, who has always been adept at identifying and exploiting grants of executive power that allow him to put pressure on the weak points of the constitutional order. In an additional twist, the administration announced that it would be using this authority not just to deport supposed members of Tren de Aragua who lack U.S. citizenship or permanent residency, but to send them to a horrific Salvadorean mega-prison established by El Salvador’s president, Nayib Bukele, the self-professed “coolest dictator in the world.”   

The problem with this clever scheme, as the ACLU argued during the Saturday-evening hearing, is that the Alien Enemies Act does not actually apply to this situation. The statute provides the president with the authority to detain and quickly remove “all natives, citizens, denizens, or subjects” of a “hostile nation or government” in the event of a declared war against the United States or an “invasion or predatory incursion.” The United States is, obviously, not at war with Venezuela; Tren de Aragua, against which the executive order is directed, is not a “nation or government”; and in no reasonable sense is an invasion or incursion taking place. Trump is attempting to get around these many problems by proclaiming Tren de Aragua to be “closely aligned” with Venezuelan President Nicolás Maduro, to the extent that the gang and the Venezuelan government constitute a “hybrid criminal state.” Building on several years of unsuccessful right-wing legal efforts to frame migration across the U.S.-Mexico border as an “invasion,” the executive order likewise frames Tren de Aragua’s presence within the United States as an “invasion or predatory incursion.”

These claims range from weak to laughable, and that’s before we consider the range of other legal problems raised by Trump’s use of the law. The best card the government has to play is the argument that courts simply can’t second-guess the president’s assertions here, based on a 1948 case in which the Supreme Court found that it couldn’t evaluate President Harry Truman’s decision to continue detaining a German citizen under the Alien Enemies Act well after the end of World War II. But the circumstances of that case, Ludecke v. Watkins, were substantially different from the circumstances today. During Saturday’s hearing, Judge Boasberg concluded that the ACLU had made a strong argument that the Alien Enemies Act can’t be invoked against a gang. At the ACLU’s request, the judge not only issued a temporary order barring deportation of the five plaintiffs under the Alien Enemies Act, but also blocked the administration from removing any other Venezuelan migrants from the country on those grounds while litigation continues.

[Quinta Jurecic: What if the Trump administration defies a court order?]

If the chain of events ended there, this would be a familiar narrative about Trump’s hostility to immigration and his penchant for making aggressive arguments in court. But there is another layer to this story that moves it into the territory of potential crisis. While the timeline remains confused, it appears that at least three planes traveled from the U.S. to El Salvador on Saturday evening, two of them departing during the hearing; all three flights arrived in El Salvador (following stopovers in Honduras) after Boasberg issued both oral and written rulings barring the deportations. A White House spokesperson confirmed to The Washington Post that 137 people on the flights had been deported under the Alien Enemies Act.

President Bukele has adopted a posture of smug mockery toward the court: “Oopsie … Too late,” he posted on X yesterday morning, with a screenshot of a news story about the judge’s ruling. Secretary of State Marco Rubio shared the post. But the Trump administration can’t seem to decide what exactly happened and whether or not what happened was a gutsy commitment to presidential power or, instead, a terrible mistake. An Axios story published last night quotes a jumble of anonymous officials apparently at odds with one another: “It’s the showdown that was always going to happen between the two branches of government,” one official said, while another frantically clarified, “Very important that people understand we are not actively defying court orders.” The administration appears to have settled on the baffling argument that it wasn’t actually defying Judge Boasberg, because the order didn’t apply to planes that were already in the air and outside U.S. territory. To be clear, that is not how things work.

The judge has called for a hearing at 5 p.m. today, when the government will be required to answer a range of questions posed by the ACLU as to when the flights departed and landed and what happened to the people on them. We should pay close attention to what the Justice Department says in court, where lies—unlike quotes to reporters or comments on television—can be punished by judicial sanctions. The administration has talked a big game about its willingness to ignore the courts, but in this instance, it may have engineered a legal crisis at least in part by accident. Will it be able to muster the same audacity when standing in front of a judge?

On May 17, 1954, a nervous 45-year-old lawyer named Thurgood Marshall took a seat in the Supreme Court’s gallery. The founder and director of the NAACP Legal Defense and Educational Fund hoped to learn that he had prevailed in his pivotal case. When Chief Justice Earl Warren announced the Court’s opinion in Brown v. Board of Education, Marshall could not have known that he had also won what is still widely considered the most significant legal decision in American history. Hearing Warren declare “that in the field of public education the doctrine of ‘separate but equal’ has no place” delivered Marshall into a state of euphoria. “I was so happy, I was numb,” he said. After exiting the courtroom, he joyously swung a small boy atop his shoulders and galloped around the austere marble hall. Later, he told reporters, “It is the greatest victory we ever had.”

For Marshall, the “we” who triumphed in Brown surely referred not only, or even primarily, to himself and his Legal Defense Fund colleagues, but to the entire Black race, on whose behalf they’d toiled. And Black Americans did indeed find Brown exhilarating. Harlem’s Amsterdam News, echoing Marshall, called Brown “the greatest victory for the Negro people since the Emancipation Proclamation.” W. E. B. Du Bois stated, “I have seen the impossible happen. It did happen on May 17, 1954.” When Oliver Brown learned of the outcome in the lawsuit bearing his surname, he gathered his family near, and credited divine providence: “Thanks be to God for this.” Martin Luther King Jr. encouraged Montgomery’s activists in 1955 by invoking Brown: “If we are wrong, then the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Many Black people viewed the opinion with such awe and reverence that for years afterward, they threw parties on May 17 to celebrate Brown’s anniversary.

Over time, however, some began questioning what exactly made Brown worthy of celebration. In 1965, Malcolm X in his autobiography voiced an early criticism of Brown: It had yielded precious little school desegregation over the previous decade. Calling the decision “one of the greatest magical feats ever performed in America,” he contended that the Court’s “masters of legal phraseology” had used “trickery and magic that told Negroes they were desegregated—Hooray! Hooray!—and at the same time … told whites ‘Here are your loopholes.’ ”

[Read: The children who desegregated America’s schools]

But that criticism paled in comparison with the anti-Brown denunciation in Stokely Carmichael and Charles Hamilton’s Black Power: The Politics of Liberation two years later. They condemned not Brown’s implementation, but its orientation. The fundamental aim of integration must be abandoned because it was driven by the “assumption that there is nothing of value in the black community,” they maintained.

To sprinkle black children among white pupils in outlying schools is at best a stop-gap measure. The goal is not to take black children out of the black community and expose them to white middle-class values; the goal is to build and strengthen the black community.

Although Black skeptics of the integration ideal originated on the far left, Black conservatives—including the economist Thomas Sowell—have more recently ventured related critiques. The most prominent example is Marshall’s successor on the Supreme Court, Justice Clarence Thomas. In 1995, four years after joining the Court, Thomas issued a blistering opinion that opened, “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”

Desperate efforts to promote school integration, Thomas argued, stemmed from the misperception that identifiably Black schools were somehow doomed to fail because of their racial composition. “There is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment,” he wrote. Taking a page from Black Power’s communal emphasis, Thomas argued that “black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.” In a 2007 opinion, he extolled Washington, D.C.’s all-Black Dunbar High School—which sent dozens of graduates to the Ivy League and its ilk during the early 20th century—as a paragon of Black excellence.

In the 2000s, as Brown crept toward its 50th anniversary, Derrick Bell of the NYU School of Law went so far as to allege that the opinion had been wrongly decided. For Bell, who had sharpened his skills as an LDF lawyer, Brown’s “integration ethic centralizes whiteness. White bodies are represented as somehow exuding an intrinsic value that percolates into the ‘hearts and minds’ of black children.” Warren’s opinion in the case should have affirmed Plessy v. Ferguson’s “separate but equal” regime, Bell wrote, but it should have insisted on genuine equality of expenditures, rather than permitting the sham equality of yore that consigned Black students to shoddy classrooms in dilapidated buildings. He acknowledged, though, that his jaundiced account put him at odds with dominant American legal and cultural attitudes: “The Brown decision,” he noted, “has become so sacrosanct in law and in the beliefs of most Americans that any critic is deemed wrongheaded, even a traitor to the cause.”

In her New Book, Integrated: How American Schools Failed Black Children, Noliwe Rooks adds to a growing literature that challenges the portrayal of the decision as “a significant civil rights–era win.” Rooks, the chair of the Africana-​studies department at Brown University, offers an unusual blend of historical examination and family memoir that generally amplifies the concerns articulated by prior desegregation discontents. The result merits careful attention not for its innovative arguments, but as an impassioned, arresting example of how Brown skepticism, which initially gained traction on the fringes of Black life, has come to hold considerable appeal within the Black intellectual mainstream.

As recently as midway through the first Trump administration, Rooks would have placed herself firmly in the traditional pro-Brown camp, convinced that addressing racial inequality in education could best be pursued through integration. But traveling a few years ago to promote a book that criticized how private schools often thwart meaningful racial integration, she repeatedly encountered audience members who disparaged her core embrace of integration. Again and again, she heard from Black parents that “the trauma their children experienced in predominantly white schools and from white teachers was sometimes more harmful than the undereducation occurring in segregated schools.”

[From the May 2018 issue: The report on race that shook America]

The onslaught dislodged Rooks’s faith in the value of contemporary integration, and even of Brown itself. She now exhibits the convert’s zeal. Brown, she writes, should be viewed as “an attack on Black schools, politics, and communities, which meant it was an attack on the pillars of Black life.” For some Black citizens, the decision acted as “a wrecking ball that crashed through their communities and, like a pendulum, continues to swing.”

Rooks emphasizes the plight of Black educators, who disproportionately lost their positions in Brown’s aftermath because of school consolidations. Before Brown, she argues, “Black teachers did not see themselves as just teaching music, reading, or science, but also as activists, organizers, and freedom fighters who dreamed of and fought for an equitable world for future generations”; they served as models who showed “Black children how to fight for respect and societal change.”

Endorsing one of Black Power’s analogies, she maintains that school integration meant that “as small a number as possible of Black children were, like pepper on popcorn, lightly sprinkled atop wealthy, white school environments, while most others were left behind.” Even for those ostensibly fortunate few flecks of pepper, Rooks insists, providing the white world’s seasoning turned out to be a highly uncertain, dangerous endeavor. She uses her father’s disastrous experiences with integration to examine what she regards as the perils of the entire enterprise. After excelling in all-Black educational environments, including as an undergraduate at Howard University, Milton Rooks became one of a very small number of Black students to enroll at the Golden Gate University School of Law in the early 1960s.

Sent by his hopeful parents “over that racial wall,” Milton encountered hostility from white professors, who doubted his intellectual capacity, Rooks recounts, and “spit him back up like a piece of meat poorly digested.” She asserts that the ordeal not only prompted him to drop out of law school but also spurred his descent into alcoholism. Rooks extrapolates further, writing:

Milton’s experience reflected the trauma Black students suffered as they desegregated public schools in states above the Mason-Dixon Line, where displays of racism were often mocking, disdainful, pitying, and sword sharp in their ability to cut the unsuspecting into tiny bits. It destroyed confidence, shook will, sowed doubt, murdered souls—quietly, sure, but still as completely as could a mob of white racists setting their cowardice, rage, and anger loose upon the defenseless.

The harms that contemporary integrated educational environments inflict upon Black students can be tantamount, in her view, to the harms imposed upon the many Black students who are forced to attend monoracial, woeful urban high schools. To make this point, Rooks recounts her own struggle to correct the misplacement of her son, Jelani, in a low-level math class in Princeton, New Jersey’s public-school system during the aughts (when she taught at Princeton University). She witnessed other Black parents meet with a similar lack of support in guiding their children to the academically demanding courses that could propel them to elite colleges. In Jelani’s case, she had evidence that teachers’ “feelings were hardening against him.” He led a life of relative safety and economic privilege, and felt at ease among his white classmates and friends, she allows, even as she also stresses that what he “experienced wasn’t the violence of poverty; it was something else equally devastating”:

We knew that poor, working-class, or urban communities were not the only places where Black boys are terrorized and traumatized. We knew that the unfamiliarity of his white friends with any other Black people would one day become an issue in our home. We knew that guns were not the only way to murder a soul.

Frustrated with Princeton’s public schools, Rooks eventually enrolled Jelani in an elite private high school where, she notes, he also endured racial harassment—and from which he graduated before making his way to Amherst College.

seven decades have now elapsed since the Supreme Court’s decision in Brown. Given the stubbornly persistent phenomenon of underperforming predominantly Black schools throughout the nation, arguing that Brown’s potential has been fully realized would be absurd. Regrettably, the Warren Court declined to advance the most powerful conception of Brown when it had the opportunity to do so: Its infamously vague “all deliberate speed” approach allowed state and local implementation to be delayed and opposed for far too long. In its turn, the Burger Court provided an emaciated conception of Brown’s meaning, one that permitted many non-southern jurisdictions to avoid pursuing desegregation programs. Rooks deftly sketches this lamentable, sobering history.

[From the May 2014 issue: Segregation now ...]

Disenchantment with Brown’s educational efficacy is thus entirely understandable. Yet to suggest that the Supreme Court did not go far enough, fast enough in galvanizing racially constructive change in American schools after Brown is one thing. To suggest that Brown somehow took a wrong turn is quite another.

Rooks does not deny that integration succeeded in narrowing the racial achievement gap. But like other Brown critics, she nevertheless idealizes the era of racial segregation. Near Integrated  ’s conclusion, Rooks contends that “too few of us have a memory of segregated Black schools as the beating heart of vibrant Black communities, enabling students to compose lives of harmony, melody, and rhythm and sustained Black life and dignity.” But this claim gets matters exactly backwards. The brave people who bore segregation’s brunt believed that Jim Crow represented an assault on Black life and dignity, and that Brown marked a sea change in Black self-conceptions.

Desegregation’s detractors routinely elevate the glory days of D.C.’s Dunbar High School, but they refuse to heed the lessons of its most distinguished graduates. Charles Hamilton Houston—Dunbar class of 1911, who went on to become valedictorian at Amherst and the Harvard Law Review’s first Black editor—nevertheless dedicated his life to eradicating Jim Crow as an NAACP litigator and Thurgood Marshall’s mentor in his work contesting educational segregation. Sterling A. Brown—Dunbar class of 1918, who graduated from Williams College before becoming a distinguished poet and professor—nevertheless wrote the following in 1944, one decade before Brown:

Negroes recognize that the phrase “equal but separate accommodations” is a myth. They have known Jim Crow a long time, and they know Jim Crow means scorn and not belonging.

Much as they valued having talented, caring teachers, these men understood racial segregation intimately, and they detested it.

In the 1990s, Nelson B. Rivers III, an unheralded NAACP official from South Carolina, memorably heaved buckets of cold water on those who were beginning to wonder, “ Was integration the right thing to do? Was it worth it? Was Brown a good decision?” Rivers dismissed such questions as “asinine,” and continued:

To this day, I can remember bus drivers pulling off and blowing smoke in my mother’s face. I can remember the back of the bus, colored water fountains … I can hear a cop telling me, “Take your black butt back to nigger town.” What I tell folk … is that there are a lot of romanticists now who want to take this trip down Memory Lane, and they want to go back, and I tell the young people that anybody who wants to take you back to segregation, make sure you get a round-trip ticket because you won’t stay.

Nostalgia for the pre-Brown era would not exercise nearly so powerful a grip on Black America today if its adherents focused on its detailed, pervasive inhumanities rather than relying on gauzy glimpses.

No one has pressed this point more vividly than Robert L. Carter, who worked alongside Marshall at the LDF before eventually becoming a distinguished federal judge. He understood that to search for Brown’s impact exclusively in the educational domain is mistaken. Instead, he emphasized that Brown fomented a broad-gauge racial revolution throughout American public life. Despite Chief Justice Warren formally writing the opinion to apply exclusively to education, its attack on segregation has—paradoxically—been most efficacious beyond that original context.

[From the October 1967 issue: Jonathan Kozol’s ‘Where Ghetto Schools Fail’]

“The psychological dimensions of America’s race relations problem were completely recast” by Brown, Carter wrote. “Blacks were no longer supplicants seeking, pleading, begging to be treated as full-fledged members of the human race; no longer were they appealing to morality, to conscience, to white America’s better instincts,” he noted. “They were entitled to equal treatment as a right under the law; when such treatment was denied, they were being deprived—in fact robbed—of what was legally theirs. As a result, the Negro was propelled into a stance of insistent militancy.”

Even within the educational sphere, though, it is profoundly misguided to claim that Black students who attend solid, meaningfully integrated schools encounter environments as corrosive as, or worse than, those facing students trapped in ghetto schools. This damned-if-you-do, damned-if-you-don’t analysis suggests an entire cohort stuck in the same boat, when its many members are not even in the same ocean. The Black student marooned in a poor and violent neighborhood, with reason to fear actual murder, envies the Black student attending a rigorous, integrated school who worries about metaphorical “soul murder.” All struggles are not created equal.

This article appears in the April 2025 print edition with the headline “Was Integration the Wrong Goal?”

America’s superrich have always found ways to avoid paying taxes, but in recent years, they’ve discovered what might be the mother of all loopholes. It’s a three-step process called “Buy, Borrow, Die,” and it allows people to amass a huge fortune, spend as much of it as they want, and pass the rest—untaxed—on to their heirs. The technique is so cleverly designed that the standard wish list of progressive tax reforms would leave it completely intact.

Step one: buy. The average American derives most of their disposable income from the wages they earn working a job, but the superrich are different. They amass their fortune by buying and owning assets that appreciate. Elon Musk hasn’t taken a traditional salary as CEO of Tesla since 2019; Warren Buffett, the chair of Berkshire Hathaway, has famously kept his salary at $100,000 for more than 40 years. Their wealth consists almost entirely of stock in the companies they’ve built or invested in. The tax-law scholars Edward Fox and Zachary Liscow found that even when you exclude the 400 wealthiest individuals in America, the remaining members of the top 1 percent hold $23 trillion in assets.

Unlike wages, which are taxed the moment they are earned, assets are taxed only at the moment they are sold—or, in tax terms, “realized.” The justification for this approach is that unrealized assets exist only on paper; you can’t pay for a private jet or buy a company with stocks, even if they have appreciated by billions of dollars. In theory, the rich will eventually need to sell their assets for cash, at which point they will pay taxes on their increase in wealth.

That theory would be much closer to reality if not for step two: borrow. Instead of selling their assets to make major purchases, the superrich can use them as collateral to secure loans, which, because they must eventually be repaid, are also not considered taxable income. Larry Ellison, a co-founder of Oracle and America’s fourth-richest person, has pledged more than $30 billion of his company’s stock as collateral in order to fund his lavish lifestyle, which includes building a $270 million yacht, buying a $300 million island, and purchasing an $80 million mansion. A Forbes analysis found that, as of April 2022, Musk had pledged Tesla shares worth more than $94 billion, which “serve as an evergreen credit facility, giving Musk access to cash when he needs it.”

This strategy isn’t as common among the merely very rich, who may not have the expensive tastes that Ellison and Musk do, but it isn’t rare either. Liscow and Fox calculated that the top 1 percent of wealth-holders, excluding the richest 400 Americans, borrowed more than $1 trillion in 2022. And the approach appears to be gaining momentum. Last year, The Economist reported that, at Morgan Stanley and Bank of America alone, the value of “securities-backed loans” increased from $80 billion in 2018 to almost $150 billion in 2022. “The real question is: Why would you not borrow hundreds of millions, even billions, to fund the lifestyle you want to live?” Tom Anderson, a wealth-management consultant and former banker who specializes in these loans, told me. “This is such an easy tool to use. And the tax benefits are massive.”

[Annie Lowrey: Trump says his tax plan won’t benefit the rich—he’s exactly wrong]

You might think this couldn’t possibly go on forever. Eventually, the rich will need to sell off some of their assets to pay back the loan. That brings us to step three: die. According to a provision of the tax code known as “stepped-up basis”—or, more evocatively, the “angel of death” loophole—when an individual dies, the value that their assets gained during their lifetime becomes immune to taxation. Those assets can then be sold by the billionaire’s heirs to pay off any outstanding loans without them having to worry about taxes.

The justification for the stepped-up-basis rule is that the United States already levies a 40 percent inheritance tax on fortunes larger than $14 million, and it would be unfair to tax assets twice. In practice, however, a seemingly infinite number of loopholes allow the rich to avoid paying this tax, many of which involve placing assets in byzantine legal trusts that enable them to be passed seamlessly from one generation to the next. “Only morons pay the estate tax,” Gary Cohn, a former Goldman Sachs executive and the then–chief economic adviser to Donald Trump, memorably remarked in 2017.

“All of this is completely, perfectly legal,” Edward McCaffery, the scholar who coined the term Buy, Borrow, Die, told me. But, he said, the strategy “has basically killed the entire concept of an income tax for the wealthiest individuals.” The tax economist Daniel Reck, who has spent his career documenting the various ways the rich evade taxation, told me that Buy, Borrow, Die is “the most important tax-avoidance strategy today.” The result is a two-tiered tax system: one for the many, who earn their income through wages and pay taxes, and another for the few, who accumulate wealth through paper assets and largely do not pay taxes.

Much of the debate around American tax policy focuses on the income-tax rate paid by the very wealthiest Americans. But the bulk of those people’s fortunes doesn’t qualify as income in the first place. A 2021 ProPublica investigation of the private tax records of America’s 25 richest individuals found that they collectively paid an effective tax rate of just 3.4 percent on their total wealth gain from 2014 to 2018. Musk paid 3.3 percent, Jeff Bezos 1 percent, and Buffett—who has famously argued for imposing higher income-tax rates on the superrich—just 0.1 percent.

The same dynamic exists, in slightly less egregious form, further down the wealth distribution. A 2021 White House study found that the 400 richest American households paid an effective tax rate of 8.2 percent on their total wealth gains from 2010 to 2018. Liscow and Fox found that, excluding the top 400, the rest of the 0.1 percent richest individuals paid an effective rate of 12 percent from 2004 to 2022. (Twelve percent is the income-tax rate paid by individuals who make $11,601 to $47,150 a year.)

One solution to this basic unfairness would be to tax unrealized assets. In 2022, the Biden administration proposed a “billionaire minimum tax” that would have placed a new annual levy of up to 20 percent on the appreciation of even unsold assets for households with more than $100 million in wealth. Experts have vehemently debated the substantive merits of such a policy; the real problem, however, is political. According to a survey conducted by Liscow and Fox, most Americans oppose a tax on unrealized gains even when applied only to the richest individuals. The Joe Biden proposal, perhaps unsurprisingly, went nowhere in Congress. Making matters more complicated, even if such a policy did pass, the Supreme Court would very likely rule it unconstitutional.

[James Kwak: The tax code for the ultra-rich vs. the one for everyone else]

A second idea would be to address the “borrow” step. Last year, Liscow and Fox published a proposal to tax the borrowing of households worth more than $100 million, which they estimated would raise about $10 billion a year. The limitation of that solution, as the authors acknowledge, is that it would not address the larger pool of rich Americans who don’t borrow heavily against their assets but do take advantage of stepped-up basis.

That leaves the “die” step. Tax experts from across the political spectrum generally support eliminating the “stepped-up basis” rule, allowing unrealized assets to be taxed at death. This would be far more politically palatable than the dead-on-arrival billionaire’s minimum tax: In the same survey in which respondents overwhelmingly opposed broad taxes on unrealized assets during life, Liscow and Fox also found that nearly two-thirds of them supported taxing unrealized assets at death.

Even a change this widely supported, however, would run up against the iron law of democratic politics: Policies with concentrated benefits and distributed costs are very hard to overturn. That’s especially true when the benefits just so happen to be concentrated among the richest, most powerful people in the country. In fact, the Biden administration did propose eliminating stepped-up basis as part of its Build Back Better legislation. The move prompted an intense backlash from special-interest groups and their allied politicians, with opponents portraying the provision as an assault on rural America that would destroy family farms and businesses. These claims were completely unfounded—the bill had specific exemptions for family businesses and applied only to assets greater than $2.5 million—but the effort succeeded at riling up enough Democratic opposition to kill the idea.

The one guarantee of any tax regime is that, eventually, the rich and powerful will learn how to game it. In theory, a democratic system, operating on behalf of the majority, should be able to respond by making adjustments that force the rich to pay their fair share. But in a world where money readily translates to political power, voice, and influence, the superrich have virtually endless resources at their disposal to make sure that doesn’t happen. To make society more equal, you need to tax the rich. But to tax the rich, it helps for society to be more equal.