“Tonight, a DC trial judge supported Tren de Aragua terrorists over the safety of Americans.”
That remarkable statement by the Attorney General of the United States Pam Bondi on March 15 was certainly designed to get the public’s attention. But it was a gross distortion of the temporary restraining order issued by U.S. District Chief Judge James Boasberg that day, prohibiting the immediate deportation of alleged members of a Venezuelan criminal gang that was recently designated a foreign terrorist organization.
Boasberg’s order, issued during an emergency Saturday evening hearing, was based on his preliminary legal determination that President Trump’s Alien Enemies Act Proclamation announced earlier that day was not a valid basis for deporting alleged members of the gang without due process. Boasberg did what the Supreme Court has held is the job of the judiciary since Marbury v Madison in 1803: “to say what the law is.” Because Boasberg had concluded that the legal basis for the deportations was lacking, he ordered that any plane that might be in the air carrying deportees under the proclamation be returned to the United States. His order was unequivocal and included turning around planes even if they landed on the El Salvador tarmac:
[Y]ou shall inform your clients of this immediately, and 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, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately (Tr. 43).
I would assume that means that they [the five named plaintiffs] are either not on the planes or that they will not be removed from the planes and will be brought back once the planes land in El Salvador. Is that fair? (Tr. 5; see also Tr. 44)
The court order to bring back any planes that were in the air at the time of the ruling, or once they had landed, has sparked the most dramatic showdown between the executive and judicial branches during Trump’s second term.
The constitutional showdown is over whether the administration violated the court’s order by flying two planes of alleged gang members to El Salvador, where they are now in a detention center, after the court’s order not to remove them and to return any planes that may have already left the United States.
Bondi’s statement exposes the political strategy the administration seems to be deploying to make this case the first real test of defiance of a court order.
By labelling the deportees “terrorists,” the administration is no doubt banking on Americans giving it a pass on violating a court order. The administration has flipped the script in the court of public opinion: It’s no longer about a judge holding the administration accountable for following the law and following a court’s orders. It’s about the administration holding a judge accountable for “supporting” terrorists. (Never mind that there has been little explanation concerning how the administration determined the deportees are members of Tren de Aragua, while several of their family members and lawyers have vociferously claimed they are not.)
This apparent strategy could be used to sway public opinion in favor of resistance to other court orders too. Will Americans care about court orders to reinstate foreign aid when the president has claimed funds have gone to “male circumcision in Mozambique” or “social and behavior change in Uganda”? Will they be okay with defying court orders to rehire fired federal employees the president has claimed are “playing tennis” and “playing golf” instead of working?
The Trump administration has not yet outright defied a court order. In the case before Boasberg, the court is still trying to determine whether the administration in fact violated the court’s order, and the government continues to resist providing the detailed flight information that would assist the court in making that determination (most recently asserting an unusual “state secrets” claim to block sharing information with the court even confidentially and without plaintiffs involved). In other cases where it appears there has been some level of non-compliance—such as with a temporary restraining order issued by Judge Amir Ali directing the State Department to resume dispersing congressionally appropriated foreign aid funds—the government is still making legal arguments in court about why it hasn’t actually violated such orders. Some of the arguments are dubious, but they at least show that the government sees value in making such legal arguments in the courts rather than openly claiming they don’t need to.
Of course, outside the courtroom, various administration officials, including the Attorney General herself, have made statements that seem to suggest otherwise.
Will there come a time when the arguments that Justice Department lawyers are making in the courts stray so far from the reality on the ground that we can say there is effective non-compliance? If so, will Americans care? Have some Americans already assumed the administration is defying court orders so that the actual constitutional crisis will be downplayed or missed? Does it matter to other Americans when a court determines the government has violated the separation of powers on which our democracy rests? Or a law enacted by Congress? If many Americans don’t care about the rule of law when it’s about so-called terrorists, or useless foreign aid, or lazy federal workers, will they care when it’s about Medicare and Medicaid, Social Security, or their tax refunds? The slippery slope of noncompliance could lead to a hard lesson for Americans living in a country without the rule of law.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions