In the early hours of Saturday, the U.S. Supreme Court seemed to signal it is losing its patience with the Trump administration.
On April 7, the high court clearly said that if the government
intends to deport a foreign-born resident, it must notify the individual
"within a reasonable period of time" so that the individual has the
ability to challenge the removal in court prior to deportation.
In the nearly two weeks that followed, however, the Trump
administration dragged its feet, avoiding meaningful compliance with the
court's order.
Then late Friday afternoon, on Good Friday, the court had a new
deportation case on its docket, one that suggested the Trump
administration was violating the terms of the earlier order.
Racing to the Supreme Court, lawyers for the ACLU told the court that
dozens of Venezuelan detainees were about to be deported. They said
that the men were notified, in papers written in English, which they
didn't understand, that they were eligible to be deported under the
Alien Enemies Act. And, the ACLU said, the men were being loaded on to
buses that presumably were going to take them to the airport for
deportation.
This time the high court acted swiftly, releasing a one-paragraph
order so quickly that the court did not even wait for the two dissenters
to file their opinion explaining their disagreement. That was not the
only extraordinary feature of the court's order.
Although couched in legal terms, the order reeked of mistrust for the government.
"The government is directed not to remove any member of the putative
class [of detainees] from the United States until further order of this
court," the justices said.
The court went on to note that the detainees' case is pending before
the Fifth Circuit Court of Appeals, and that pending the outcome in that
most conservative court, the solicitor general "is invited to file a
response" to the still pending application for review by this court "as
soon as possible." In other words, the court was saying to the
administration, whether you win in the Fifth Circuit or not, this isn't
over yet.
Is this a constitutional crisis?
So now, let's take a deep breath and figure out where we are.
If you have been a reporter in Washington for a long time, you have
seen lots of alleged constitutional crises. Some, in hindsight, were
not. Others, like President Nixon's attempts to hide a criminal
conspiracy in the White House, were. But in Watergate, Congress operated
within a series of norms, and Republicans, when faced with stark,
on-tape evidence of Nixon's lies, corruption, and perfidy, abandoned
him. When the Republican congressional leadership told the president he
had lost virtually all support, Nixon resigned rather than be impeached,
convicted, and removed from office.
Today, with many Republicans terrified of crossing Trump, it is not
clear that Donald Trump could do anything to lose his GOP support in
Congress. But in a clash with the Supreme Court, he could lose a lot. So
too could the court, because it has few tools to actually make a
president do something. And if a president succeeds in defying the
court, the whole system of government, and of checks and balances, would
be in peril.
So, are we in a constitutional crisis? Think of the country right now
as the pot on a stove. A week ago, one might have said that the flame
controlling the temperature was on medium. But in the days since then,
the pot has been inching closer to high, and a full-on clash between the
Supreme Court and the president.
Two weeks ago, the court told the Trump administration it had to
"facilitate" the return of a Maryland man named Kilmar Abrego Garcia to
the U.S., where he had been under a protective court order barring his
deportation. An immigration judge had ruled that Abrego Garcia had
demonstrated a reasonable fear that were he to be returned to El
Salvador, he would risk death or torture from gangs that he had refused
to join. The judge thus granted Abrego Garcia, who entered the country
illegally, protection from deportation.
Nonetheless, the husband and father, who in the course of his 14
years in the U.S. has never been charged with a crime, was grabbed by
ICE officials, and, the administration admits, "mistakenly" deported to
El Salvador. The administration says he's an MS-13 member, an allegation
his lawyers reject.
Since then, however, the president has continued to insist he has no
obligation to bring Abrego Garcia back to the U.S. from the detention
center in El Salvador where he is being held at the behest of the Trump
administration. The U.S. is paying El Salvador $6 million to imprison
more than 200 alleged gang members deported from the U.S., presumably
with more to come. And last week saw the spectacle of the president of
El Salvador meeting with Trump at the White House, and the two men
pronouncing that they had no obligation to do what the Supreme Court had
just told Trump to do.
Trump, for his part, has continued to openly flirt with the idea of
deporting American citizens to a Salvadoran prison, too. And the
president of El Salvador didn't seem averse to the idea.
An extraordinary opinion
Meanwhile, the federal district judge in charge of Abrego Garcia's
case in Maryland, Paula Xinis, has sought to carry out the Supreme
Court's instructions on facilitating Abrego Garcia's release. She set a
schedule for daily updates and sought to gather more information, but
she was essentially stiffed by the administration.
So, Judge Xinis, for the first time, raised the prospect of holding
contempt proceedings against the government, and the administration
asked the Fourth Circuit Court of Appeals to block her efforts.
That produced a truly remarkable opinion, written by Judge J. Harvey
Wilkinson, a very conservative judge appointed by President Ronald
Reagan, who forcefully rejected the administration's plea.
Writing for a
unanimous three-judge panel, he said that the Supreme Court's order to
facilitate Abrego Garcia's release means that Abrego Garcia should be
returned to the United States and afforded the due process of law here
to which he is entitled. A continued failure to comply, said Wilkinson,
would "reduce the rule of law to lawlessness and tarnish the very values
for which Americans of diverse views and persuasions have always
stood."
"If the Executive claims the right to deport without due process and
in disregard for court orders," he said, "what assurances will there be
tomorrow that it will not deport American citizens and then disclaim
responsibility to bring them home. And what assurance shall there be
that the executive will not train its broad discretionary authority
power upon its political enemies?"
Wilkinson concluded with a warning about how Trump's tactics have
produced a constitutional crisis, though he did not use that phrase:
"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," he said, with Trump claiming the "illegitimacy"
of the courts, and the judiciary, by dint of "custom and detachment"
only able "to sparingly reply." At the same time, the Executive has much
to lose, too, he said, because the public will come to perceive
"administration's "lawlessness and all of its attendant contagions."
Trump "may succeed for a time in weakening the courts," Wilkinson
said, but over time, "history will script" a "tragic" ending and the law
"will sign its [own] epitaph."
Straining for an optimistic note, Wilkinson concluded, "We cling to
the hope that it is not naïve to believe our good brethren in the
Executive Branch perceive the rule of law as vital to the American
ethos. This case presents their unique chance to vindicate that value
and to summon the best that is within us while there is still time."
A day after the Fourth Circuit opinion was released, Trump was
railing at the courts again, claiming that Abrego Garcia is a "very
violent person and they want this man to be brought back into our
country."
None of this is lost on the Supreme Court, which has sought not to
precipitate a direct constitutional clash with Trump. But at some point
in the not too distant future, the high court may have to confront the
president head on, even though the court's tools to force compliance are
limited.
Chief Justice John Roberts, at his confirmation hearing 20 years ago,
opined that "judges have to have the courage to make the unpopular
decisions when they have to," including striking down as
unconstitutional acts of the executive. "That is the judicial oath," he
said. But he likely never imagined a president as insistently
recalcitrant as Trump.
Could this be the next group deported to El Salvador?