As Steven Taylor noted yesterday, the Trump administration is pretending that it is powerless to comply with a Supreme Court order to facilitate the return of Kilmar Abrego Garcia. They are also defying a lower court order to allow the Associated Press to attend White House press briefings. Yesterday, they overlapped.
AP (“Despite a court order, White House bars AP from Oval Office event“):
Despite a court order, a reporter and photographer from The Associated Press were barred from an Oval Office news conference on Monday with President Donald Trump and his counterpart from El Salvador, Nayib Bukele.
Last week’s federal court decision forbidding the Trump administration from punishing the AP for refusing to rename the Gulf of Mexico was to take effect Monday. The administration is appealing the decision and arguing with the news outlet over whether it needs to change anything until those appeals are exhausted.
Needless to say, if the executive branch can pick and choose which judicial rulings to obey, our system of checks and balances is all but meaningless. Especially when they’re simultaneously routinely ignoring acts of Congress, including appropriations bills.
The Atlantic‘s Adam Server concludes, “The Constitutional Crisis Is Here.”
Since last week’s Supreme Court directive, Trump officials have harped on a line stating that the lower court should clarify its “directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Officials including Miller and Secretary of State Marco Rubio have interpreted that to mean that they do not have to follow the order at all. During the Oval Office meeting, Rubio chimed in to say that “no court in the United States has a right to conduct the foreign policy of the United States.”
In other words, the administration is following the Supreme Court’s ruling by ignoring it completely.
This rhetorical game the administration is playing, where it pretends it lacks the power to ask for Abrego Garcia to be returned while Bukele pretends he doesn’t have the power to return him, is an expression of obvious contempt for the Supreme Court—and for the rule of law. The administration is maintaining that it has the power to send armed agents of the state to grab someone off the street and then, without a shred of due process, deport them to a Gulag in a foreign country and leave them there forever. The crucial point here is that the administration’s logic means that it could do the same to American citizens—after all, if deporting someone under a protective order to a Gulag without so much as a hearing is a “foreign policy” matter with which no court may interfere, then the citizenship of the condemned person doesn’t matter.
Trump is already contemplating the possibility of deporting citizens. Aside from numerous public statements to that effect, Trump told Bukele, in an exchange posted on Bukele’s X feed, “Homegrowns are next. The homegrowns. You gotta build about five more places.” Loud laughter filled the Oval Office.
As Justice Sonia Sotomayor wrote in a statement joined by Justices Elena Kagan and Ketanji Brown Jackson accompanying the Supreme Court’s order last week, which was issued with no public dissents, “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” More broadly, this matter is no longer just about deportations or undocumented immigrants. The Trump administration’s defiance of a Supreme Court order is a new step into presidential lawlessness, in that it suggests that the administration will not abide by any court orders it does not feel like complying with.
In “Trump Dares the Supreme Court to Do Something,” Serwer’s colleague, David A. Graham, adds:
American citizens might like to reassure themselves that Abrego Garcia’s case is an outlier involving a Salvadoran citizen; surely they are insulated from such misfortune. But this would be a failure of imagination. First, as I have written, a government that can ignore court rulings in one sphere can ignore them in others, so no one is safe from a lawless government.
Moreover, an American citizen could find themselves in precisely the same vise as Abrego Garcia. During today’s remarks, Trump was asked whether he would be willing to deport American citizens convicted of violent crime to El Salvador. “I’m all for it,” he said. But convictions are overturned all the time. What would happen if an American citizen was found guilty, sent to CECOT, and then had their conviction overturned? We can guess: The White House would insist that they were in Salvadoran custody, beyond the government’s reach. Bukele would shrug and say he had no power to release them.
[…]
If Abrego Garcia stays in El Salvador—Bondi’s claim that the matter is in Bukele’s hands makes it effectively impossible for the Justice Department to comply—the case will surely end up back before the Supreme Court. In their brief, unsigned order about Abrego Garcia last week, the Supreme Court justices seemed to be trying to say as little as possible, and today’s press conference showed how happy the White House has been to take advantage of their brevity and ambiguity. If the Court is unwilling to be more direct, it will surrender any power to act as a check on the other branches of government, thereby allowing authoritarianism.
In an 1832 standoff with the Supreme Court, President Andrew Jackson—a hero of Trump’s—is apocryphally supposed to have said that Chief Justice John Marshall “has made his decision; now let him enforce it!” The quote is famous but fictional; less well known is the fact that Jackson did, ultimately, comply with the Court. So have all of his successors. Trump is on the brink of breaking that precedent. If he succeeds, he will have broken the bonds of the Constitution as well.
Lawfare’s Ben Wittes, famous for his understatement and reticence to declare crisis,
It’s like a game of three-card monte. Trump says it’s all up to Bukele. Bukele says it’s all up to Trump. And under card number three, a federal judge has to somehow protect all of our rights not to be disappeared into a foreign gulag.
So how does a reasonable federal judge respond to such committedly proud lawlessness and lying?
It’s a hard question.
And Judge Xinis has certain significant handicaps in undertaking a confrontation with the president. The first is that she doesn’t, in fact, control the foreign policy apparatus of the United States. Our embassy in San Salvador represents Trump, not her. Our State Department does too. When the Salvadoran president meets with the American administration, he talks to Trump, not the judge. And when he gets asked whether he will send Abrego Garcia back, he’s sitting next to Trump. He’s not in Judge Xinis’s court.
[…]
The second problem for the judge is that it is not clear how far the judge can go and still have the backing of the Supreme Court. The court ruled unanimously that she was within her power to order the executive to “facilitate” Abrego Garcia’s return and that the administration “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps” to get Abrego Garcia back.
But it also said that the judge needs to proceed “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” How will the Supreme Court understand what that “due regard” looks like and what information the administration “can” share concerning the steps it is or isn’t taking on Abrego Garcia’s behalf? That’s unclear. So the judge doesn’t know how much latitude she has here to be aggressive with officials who are playing hardball with her.
Third, Judge Xinis will have to think hard about whether and how she can enforce whatever orders she issues. Normally, court orders are enforced by the threat of civil contempt, which can result in fines or incarceration of recalcitrant subjects. But this is a tricky tool to use when the executive branch—or its officials—are the contemnors.
After all, it is the executive branch that locks people up and presumably won’t do so to its own officials effectuating presidential will. And fines can be reimbursed.
This is, to say the least, not the system of government depicted on Schoolhouse Rock.
In fairness, the circus aspect still holds true.
This installment would need to be capped entirely:
It was good while it lasted.
