Photo: El Salvador Presidency / Handout/Anadolu/Getty Images
The Trump administration has stepped right up to the line of intentional defiance of a judicial order, perhaps even over it.
We should know in the hours and days ahead whether we have arrived at a legitimate constitutional crossroads — that’ll depend on the details — or whether the administration has adopted a posture of semi-intentional, self-serving recklessness toward the courts. Either way, we’ve got a problem.
On Saturday, federal immigration authorities arrested over 200 alleged members of the Venezuelan gang Tren de Aragua (TdA), based on a 1798 law called the Alien Enemies Act. That law gives the president broad authority to deport noncitizens under two circumstances. First, the law applies when there is a declared war between the United States and a foreign country (obviously inapplicable here). Second, the Act allows deportation in the case of an “invasion or predatory incursion” into the United States by “any foreign nation or government.”
Two issues jump off the page. First, can the presence of TdA be reasonably considered an “invasion or predatory incursion” on American soil? Trump formally proclaimed that the gang has “unlawfully infiltrated the United States” and is “conducting irregular warfare and undertaking hostile actions against the United States.” It’s a stretch, and I suspect most judges would reject the creative pigeonholing effort, but it’s not a facially outrageous legal claim.
Second, even if TdA’s criminal activity can be taken as an “invasion,” that conduct must be attributed to a foreign government. To that end, the Trump administration asserts that TdA “is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.” In other words, the argument goes, even if TdA is not the actual Venezuelan government, they’re essentially embedded with the people who run it. Again, feels like a long shot, but not quite ridiculous.
Ordinarily, we’d be gearing up for a high-stakes series of weighty legal arguments about what exactly the act means and whether it applies to the facts here — standard courtroom stuff. Indeed, the Trump administration has appealed the ruling by federal District Court Judge James Boasberg temporarily blocking and halting implementation of any deportation effort, pending resolution of the legal issues: “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States however that is accomplished,” the judge said from the bench, apparently sensing that the Trump administration might be seeking an end run. “Make sure it’s complied with immediately.”
But, it turns out, the deportees are gone, already flown out of the United States and deposited in prison in El Salvador. Here’s the pivotal question: Where exactly were the deportees at the moment of the judge’s order?
The Washington Post has constructed the most complete timeline available so far. It shows that, at the moment the judge gave his order orally from the bench (6:47 p.m. on Saturday), two of three flights were already in the air, and the third was on the ground. When the judge’s written order hit the docket at 7:26 p.m., the status of all three flights was the same as before: two in the air and one on the ground, though that third flight left ten minutes later at 7:36.
On its face, then, we have two questions. First, why didn’t the Trump administration order the two flights that were already in the air to turn around? They certainly could have done this; we have sophisticated communications technology, and planes can be re-routed. There’s a separate question about whether the judge’s order was binding on a planeload of passengers if it had left the United States and was in non-territorial air. That’s a murky legal question, and could give the Trump administration at least a fig leaf to claim they didn’t openly defy a valid court order. It’s thin, indeed.
The Trump administration also has implied limply that the court order somehow wasn’t official until a written order landed on the docket, 39 minutes after the judge’s in-court statement. That’s a bogus argument, as anyone knows who has ever appeared before a federal judge. When the judge says it from the bench, that’s that.
But the third plane is a problem either way because, according to the Post’s analysis, it took off ten minutes after the judge’s decision was posted on the docket (and 49 minutes after the in-court ruling). Sure looks like open defiance. If and when the judge demands an accounting from the administration, watch for a claim that the lawyers could not practically have communicated the court order exactly contemporaneously with its entry. While it’s fair to allow a few minutes for transmittal of the court’s findings to the appropriate arms of government, 49 minutes is certainly pushing it. Cell phones exist, after all; it’s not like an order would need to be communicated by a courier on horseback.
We also must call out an alternative (and recurring) Trump administration defense: The judge’s decision was a “baseless legal ruling no matter when the flights took off” and therefore the administration was free to ignore it. This rationale is dangerously circular: We think the judge is wrong so we can do whatever we want. The way we decide who is right and wrong is through the courts (including the appeals process) and not by unilateral fiat.
It’s a lose-lose situation for the nation. In one scenario, we have open, intentional defiance by the executive branch of a court order. I’m typically among the last to claim some situation or other is a “constitutional crisis.” Too often, that phrase is deployed as a jacked-up substitute for “something is happening that I don’t like.” In my view, we reach a constitutional crisis only when we don’t know what to do next. And if the president is blowing off the courts, then our only options are pale ones indeed. A judge can make contempt findings, but why would an administration that already defies court orders care about that? If you could ask the Founders what happens to a president who defied the courts, I suspect they’d point to impeachment as the proper constitutional remedy. But we live in modern reality, and that’s not happening.
Even if the Trump administration has not intentionally defied a court order, they’re getting perilously close to the line and they’re reveling in their adjacency to lawlessness. The administration easily could have played it straight, if they cared to do so. Usually litigants in federal courts — particularly the U.S. government — give leeway to a judge’s decision, or even an impending ruling. A good-faith player would have reasoned, “Okay, we have a court hearing coming up on this issue, so let’s wait and see what the judge rules and then act accordingly.” Instead, the administration had those planes loaded, fueled up, and either waiting on the runway or already airborne by the time the judge ruled, with no intention to wait on official word from the court. The defiance in this scenario isn’t quite intentional; it’s more like intentionally reckless. It’s like if I ran through a house blindfolded and holding a burning torch; I might not intend to set anything on fire, but I sure would know that it’s virtually certain to happen.
The Trump administration is right at the brink of intentional defiance here; the forthcoming details will tell us whether they’ve crossed over into willful lawlessness or merely inexcusable recklessness. And this entire scenario is self-imposed. The administration is free to pursue its immigration agenda aggressively and expeditiously, even if that involves pushing the outer boundaries of the law. Instead, they’ve chosen at best to play fast and loose and at worse to throw our legal and political system into havoc.
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