The Trump administration’s running battle with the federal courts reached a critical juncture this week, heightening a constitutional dispute that has defined its first three months in power.
President Donald Trump and his deputies have raised the question of whether they need to comply with court orders they disagree with. But developments in a pair of immigration-related cases are raising key questions: Can the executive branch ignore court rulings? And if the government mistakenly deports someone, is it obliged to bring them back?
Federal courts have mostly ruled against the executive branch in such cases. The equivocation that has characterized the administration’s legal responses to date is turning into objection and refusal.
Why We Wrote This
America’s executive and judicial branches are at a constitutional stand-off over fundamental democratic ideals: following court orders, due process, and preventing government overreach.
A simmering constitutional crisis may now be hitting a boiling point.
The current clashes center on the Trump administration’s assertion of broad powers to detain and deport individuals with little or no due process. Federal courts, including the U.S. Supreme Court, have pushed back. But with the administration’s increasing defiance, the court system’s ability to enforce its orders is being directly tested.
Concern has deepened with the case of Kilmar Ábrego García, an undocumented immigrant deported to El Salvador last month without a court hearing. His case raises a novel – and, including for some conservatives, dangerous – vision of executive power.
“The implication of their arguments is they can take anyone they want, put them in the custody of a foreign state acting at the behest of the United States, and wash their hands,” says Ilya Somin, a professor at Antonin Scalia Law School at George Mason University.
“If that’s not a menace to real democratic values, it’s hard to see what is,” he adds.
Is the government ignoring a Supreme Court ruling?
On March 15, the federal government deported Mr. Ábrego García to El Salvador, alleging that the Maryland resident is a member of the MS-13 gang. The Trump administration has designated MS-13 a foreign terrorist organization. Late last month, the government admitted in court that an “administrative error” led to Mr. Ábrego García’s removal.
The Supreme Court, in an order that no justice publicly opposed last week, said the administration needs to “facilitate” Mr. Ábrego García’s release from Salvadoran custody. There has been no evidence that the Trump administration has been making that effort.
In court, it has argued that deadlines have been “impracticable” and claims it’s powerless to take Mr. Ábrego García from El Salvador. Outside of court, Trump officials have criticized lower courts and misrepresented the Supreme Court decision. Mr. Trump has upped the ante, saying he “would love” to deport U.S. citizens as well. The White House did not respond to a request for comment.
A series of federal courts have held that the government needs to work to return Mr. Ábrego García so he can face formal removal proceedings. Maryland District Court Judge Paula Xinis initially ordered the government to “facilitate and effectuate” his return “to preserve [his] access to due process in accordance with the Constitution and governing immigration statutes.” The Trump administration appealed the order to the Supreme Court, and last week the justices mostly upheld it.
In a brief, unsigned opinion, the justices did add that Judge Xinis should “clarify” her order, while the government “should be prepared to share what it can” concerning its compliance.
But since the Supreme Court ruling on April 10, the government has missed multiple deadlines to update the court on its steps toward such compliance. In a hearing last Tuesday, Judge Xinis ordered an “intense” two-week inquiry into the administration’s actions. “To date, what the record shows is that nothing has been done,” she said. “Nothing.”
On Thursday, a panel of federal appeals court judges denied a government request to pause her efforts pending an appeal.
“The government asserts that Ábrego García is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process,” the judges wrote.
“Willful disregard” of a court order
Judge Xinis’ inquiry could lead to contempt of court charges against the Trump administration. Contempt proceedings against presidential administrations are rare, but they are one of the few procedural tools courts have for enforcing their rulings.
A federal judge moved a step closer to this legal showdown on Wednesday.
On March 15, Judge James Boasberg in Washington, D.C., ordered a temporary pause of deportations to El Salvador, based on the 1798 Alien Enemies Act, invoked by Mr. Trump. The government deported some 238 people that day, and they remain in Salvadoran custody.
This week, the judge concluded that “probable cause exists” to find the government in criminal contempt. The government, he wrote, showed a “willful disregard” of his order.
Carolyn Van Houten/The Washington Post/AP/File
The finding is significant, but it also illustrates how little enforcement power the judiciary has.
Judge Boasberg “is doing his best to respond to an unprecedented situation,” says Aziz Huq, a professor at University of Chicago Law School.
But when enforcing their decisions, he adds, “courts don’t have much beyond this.”
Dueling responses
The government’s actions have drawn criticism not just from Judge Xinis and Democratic lawmakers, but also from some conservatives.
Both the National Review editorial board and Tea Party Republican Trey Gowdy have said the administration should follow court orders and return Mr. Ábrego García. Jonah Goldberg, a conservative commentator, put it in starker terms.
“The Trump administration is using words like ‘war,’ ‘enemy,’ ‘terrorism,’ ‘crisis’ to concentrate … power in the president and the president alone,” he wrote in The Bulwark, a conservative, anti-Trump news and opinion website. “Do you really think Democrats are incapable of playing the same game?”
In recent days, Trump officials have taken a different tack. Stephen Miller, a top Trump adviser insisted that the Maryland father “was not mistakenly sent to El Salvador.” He also told the press that the Supreme Court had “reversed unanimously” the “main components” of Judge Xinis’ order.
But the lower courts are standing together in their interpretation of the Supreme Court ruling.
On Thursday evening, Maryland Sen. Chris Van Hollen met with Mr. Ábrego García in person, although it was unclear how the meeting was arranged or what was discussed, according to The Associated Press.
It remains to be seen whether the Trump administration’s legal evasiveness will continue or whether the judges will move toward charging it with contempt, but the stakes of the case are becoming clearer.
“The Supreme Court’s decision does not … allow the government to do essentially nothing,” wrote the U.S. Court of Appeals for the Fourth Circuit panel on Thursday in an opinion upholding Judge Xinis’ order.
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” the panel added.
“This should be shocking not only to judges, but to the intuitive sense of liberty that Americans, far removed from courthouses, still hold dear.”
