Defiance and threats in deportation case renew fear of constitutional crisis

WASHINGTON — Over the weekend, the Trump administration ignored a federal judge’s order not to deport a group of Venezuelan men, violating an instruction that could not have been plainer or more direct.

Justice Department lawyers later justified the administration’s actions with contentions that many legal experts said bordered on frivolous.

The line between arguments in support of a claimed right to disobey court orders and outright defiance has become gossamer thin, they said, again raising the question of whether the latest clash between President Donald Trump and the judiciary amounts to a constitutional crisis.

Legal scholars say that is no longer the right inquiry. Trump is already undercutting the separation of powers at the heart of the constitutional system, they say, and the right question now is how it will transform the nation.

“If anyone is being detained or removed based on the administration’s assertion that it can do so without judicial review or due process,” said Jamal Greene, a law professor at Columbia, “the president is asserting dictatorial power and ‘constitutional crisis’ doesn’t capture the gravity of the situation.”

Trump raised the stakes Tuesday by calling for the impeachment of the judge who issued the order, James E. Boasberg of the U.S. District Court in Washington, describing him on social media as a “Radical Left Lunatic.”

The president did so even as the issues at hand have just started to be tested in a case that seems headed to the Supreme Court.

A few hours later, Chief Justice John Roberts issued an unusual statement, seemingly prompted by such exhortations, and perhaps by the filing of articles of impeachment against Boasberg by a Republican member of the House.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” the chief justice said. “The normal appellate review process exists for that purpose.”

In an appearance on Fox News, Trump told Laura Ingraham that the chief justice had not mentioned him by name. Still, the dueling statements, coming on top of the lower court showdown over the deportations, fueled a sense that the clash long predicted between Trump and the federal judiciary had been fully engaged.

Aziz Huq, a law professor at the University of Chicago, said that assessing whether a given development is a constitutional crisis is “generally unhelpful.”

“I think it’s more useful to say that this is moving us into a completely different kind of constitutional order, one that’s no longer characterized by laws that bind officials and that can be enforced,” Huq said. “The law, in other words, becomes a tool to harm enemies, but not to bind those who govern. That is a quite different constitutional order from the one that we’ve had for a long time.”

The contested directive was issued at a hearing Saturday by Boasberg. It sought to pause the removal of more than 200 migrants said to be members of a Venezuelan gang to El Salvador, after Trump invoked the wartime authorities of the Alien Enemies Act of 1798 to order them deported. The Trump administration ignored the order, issued from the bench, to return planes in the air 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,” Boasberg told a government lawyer. “But this is something that you need to make sure is complied with immediately.”

The planes kept flying.

At a hearing Monday, another government lawyer said the administration was not bound by the oral order, however specific, but only by a docket entry summarizing it in general terms, without reference to the planes but starting with the phrase “as discussed in today’s hearing.”

The administration may well win before the justices on the underlying issues in the case, which involve difficult constitutional questions about presidential power over national security and immigration. But those issues are separate from the current one: Must the president obey court orders he contends are wrong while he appeals them?

White House press secretary Karoline Leavitt defended the administration’s conduct on social media.

“The administration did not ‘refuse to comply’ with a court order,” she wrote, adding that “the written order and the administration’s actions do not conflict.” She did not address whether the administration had complied with the judge’s oral directive.

Leavitt added that Boasberg had overstepped his authority. “A single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil,” she said.

All of that may be so, but Boasberg’s oral order was not hard to understand.

If there was authentic doubt about what Boasberg meant, legal experts said, the better practice would have been to seek clarification or to appeal.

“It should go without saying that, at the Justice Department, the rule of the road is that, in the absence of a true emergency, the government complies with judicial orders, even if the orders are patently lawless, until it can get them reversed — either by the issuing judge or a higher court,” Andrew C. McCarthy, a former federal prosecutor, wrote in the right-leaning National Review. “It’s all right to complain bitterly about court orders, but they are not to be ignored, much less knowingly flouted.”

The administration has chosen a different path, McCarthy argued. “The government seems to be intentionally instigating fireworks,” he wrote. “That seems like a terrible legal strategy, but it may be winning politics … at least for a little while,” he added, using ellipses for emphasis.

The lawyer representing the government at Monday’s hearing had another argument: that Boasberg was powerless to order the planes to turn around once they had left American airspace. That assertion was also labeled unconvincing by many legal experts.

“The administration has this completely wrong,” Hannah L. Buxbaum, a law professor at Indiana University, wrote in a blog post. “The judge is ordering the administration to take action inside the United States — that is, to instruct the planes to turn around. That instruction will in turn cause something to happen elsewhere (the pilots will change course), but that doesn’t make the order impermissibly extraterritorial.”

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