A battle looms over rule of law as some courts start to flex their muscles against Trump
The US supreme court and other federal courts have begun flexing their muscles to push back on Donald Trump's efforts to defy judicial orders, escalating a hugely consequential battle over the rule of law.
The supreme court issued a significant order early Saturday morning blocking the federal government from removing people from the United States who had been detained in northern Texas. Separately, US district Judge James Boasberg has found probable cause to hold the government in contempt for defying his orders to halt deportations.
In another case, the US district Judge Paula Xinis has forced the government to provide daily updates in its efforts to comply with court orders to 'facilitate' the return of Kilmar Ábrego García – the man who was wrongly deported to El Salvador.
It is a dynamic that underscores how a constitutional crisis between Trump and the courts is likely to be a push and pull between the government and judges that is simmering through the legal system and could very well break it.
'The president is testing how much the judiciary still meaningfully constrains him,' Ben Raderstorf, a policy associate at the watchdog group Protect Democracy wrote in a blog post titled 'there is no rubicon'.
Whether the courts can force compliance with their orders is an essential question for American democracy, where a pillar of the rule of law is the willingness of litigants to accept court rulings, especially the ones they disagree with.
'The quality of judicial independence that federal judges have enjoyed throughout most of our history has depended much more on norms than it has on rules,' said Stephen Burbank, a professor emeritus at the University of Pennsylvania. 'Of course, a major concern from that perspective is that Trump pays no attention to norms.'
Trump said on Tuesday he did not think due process was a requirement before deporting someone.
'Look, we are getting some very bad people, killers, murderers, drug dealers, really bad people, the mentally ill, the mentally insane, they emptied out insane asylums into our country, we're getting them out. And a judge can't say: 'No, you have to have a trial,'' he said. 'No, we are going to have a very dangerous country if we are not allowed to do what we are entitled to do.'
In its Saturday ruling, the supreme court had temporarily blocked the administration from deporting people being held in a detention center in Anson, Texas, under the Alien Enemies Act (AEA).
At the beginning of April, the supreme court had allowed deportations under AEA to move forward as long as migrants received adequate notice they were being deported under the law. 'The notice must be afforded within a reasonable time and in such a manner as will allow them to actually' challenge their deportation prior to it occurring, the supreme court said.
But in filings last week, lawyers for detainees challenging the Texas deportations told the US supreme court their clients were being presented with English-only notices informing them they were being deported under the AEA, but no information about how to challenge it.
In an extraordinary move, the US supreme court issued a decision temporarily halting the deportations before a lower court, the US court of appeals for the fifth circuit, had even ruled on the matter. The court moved to intervene quickly even though a government lawyer had said in a hearing in a related case on Friday that there were no plans for planes to take off that day.
'In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might've been no need to intervene overnight Friday evening; the justices could've taken at least some of Saturday to try to sort things out before handing down their decision,' Stephen Vladeck, a law professor at Georgetown, wrote in his Substack newsletter One First. 'This may seem like a technical point, but it underscores how seriously the court, or at least a majority of it, took the urgency of the matter.'
However significant, the US supreme court's ruling is only temporary and the government is likely to ask it to lift it and resume the deportations. The court's response is likely to set off the next round of its fight with Trump. Some conservative voices, including Sean Davis, CEO of the Federalist, and Trump ally Mike Davis, have already started attacking the justices on the court.
'If the Supreme Court is going to ignore the law and the Constitution, then the president is obligated to ignore the Supreme Court and put it in its place,' Sean Davis said in a post on X on Saturday. 'When we're done deporting illegals, it's time to start deporting rogue judges,' he wrote in another post.
'Let's hope our Supreme Court justices get their heads out of their asses. They wear robes, not capes,' Mike Davis, who runs the Article III project, a conservative group focused on the courts, wrote on X.
Steve Deace, a prominent conservative talkshow host, also suggested Trump was entitled to ignore the courts.
'Essentially courts are claiming you can bypass due process to illegally invade America, but then must be granted due process to have your invasion repelled. That is not a country, but judicial insurrection to undo the last election. Trump should ignore it and do what he was empowered by the sovereign will of the people to do,' he wrote in a post on X.
Outside of the supreme court, Judge Boasberg laid out a series of escalating actions he could take to punish the Trump officials. (An appellate court has paused the contempt process while the Trump administration appeals.)
In the case before Xinis, the administration seems to be doing whatever it can to avoid complying with orders that it 'facilitate Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador'.
On 10 April, Xinis ordered the government to take 'all available steps to facilitate the return of Ábrego García to the United States as soon as possible'. Deploying one of her judicial tools, she ordered the government to provide daily updates to her on what it was doing to comply with that order.
When the government made it clear it was doing nothing to comply, she ordered government officials to respond to written questions from the plaintiffs and for key officials to sit for depositions. Lawyers for the plaintiffs said in a court filing on Tuesday that the government was essentially ignoring that order as well.
The Trump administration appealed Xinis's 10 April order to the US court of appeals for the fourth circuit. A panel of judges on the circuit denied the administration's request to halt the lower court's rulings. And in a striking opinion, Judge Harvie Wilkinson, a Ronald Reagan appointee once considered a top contender for the supreme court, warned of all the damage that could come if the executive branch continued to defy the judiciary.
'Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around,' Wilkinson wrote. 'The judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The executive will lose much from a public perception of its lawlessness and all of its attendant contagions.
'The executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.'
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