American Civil Liberties Union attorney Lee Gelernt said after the hearing before Boasberg on Monday that courts make difficult, polarizing decisions all the time.
“What changes here, what the difference is here, is the government’s apparent refusal to abide by the federal court’s power, » he said. « Our country is based on the assumption that there are three equal branches and that the federal court will say what the law is and that the other two branches will adhere to those rulings. Once that ends, we’re in a very different situation in this country; we’re no longer a country based on the rule of law.”
Legal fights over immigration have put a fine point on Trump’s recalcitrance when it comes to being constrained by existing laws and norms. It is fertile political ground for him, because polling shows most Americans embrace his promises to stop illegal border crossings and deport millions of people already in the country without proper status. A majority of registered voters (55%) approve of Trump’s handling of border security and immigration, according to a new NBC News poll, while 43% disapprove. It was Trump’s strongest issue out of five tested in the poll.
And his lieutenants appear to have little regard for the courts as they pursue those goals.
“We’re not stopping,” White House border czar Tom Homan said Monday morning on “Fox and Friends.” “I don’t care what the judges think.”
Despite the rhetoric against judges and the defiance of some rulings, the administration has also taken steps to follow the appeals process, indicating that officials are trying to maintain at least a semblance of respect for legal norms. When it has lost cases, such as over payments due to USAID contractors or the ultimately successful effort to fire a federal employee watchdog, it has immediately turned to courts of appeal and then to the Supreme Court.
But in the case of the deportations over the weekend, said Samuel Bray, a professor at the University of Notre Dame Law School, Trump officials were in contempt of Boasberg’s order in his view.
“If a court gives an order and a court has jurisdiction and the party who’s given the order has notice of the order and knows what it means, then if you disobey it, that’s contempt,” he said.
“The administration’s arguments about being outside the territory of the United States and the order being oral rather than written are not good legal arguments. They are more like an attempt to work the refs as these cases go up on appeal,” Bray said. In this context, the refs in question are the nine members of the Supreme Court.
Four Democratic senators rebuked Trump in a statement Monday for invoking the Alien Enemies Act, which was designed to thwart a hostile takeover of the country. The plain language of the law allows the president to execute the deportation of noncitizens in the event of “a declared war” or an invasion by “any foreign nation or government.”
“Let’s be clear: we are not at war, and immigrants are not invading our country,” wrote Sens. Alex Padilla, of California, Cory Booker, of New Jersey, Dick Durbin, of Illinois, and Peter Welch, of Vermont.
“Furthermore, courts determine whether people have broken the law — not a president acting alone, and not immigration agents picking and choosing who gets imprisoned or deported,” the letter added. “It’s what our Constitution demands, and it’s the law Trump is bound by no matter how much he tries to mislead the American people otherwise.”
But the Democratic senators have no power to force Trump to follow a judge’s orders. In some cases, the administration is deferring to the courts — at least for now. Last week, a federal judge told the administration that it could not summarily deport Khalil, the pro-Palestinian activist at Columbia University.
U.S. officials detained Khalil in New York and moved him to Louisiana, where they hope his case will be heard. The venue could be important in ultimately determining whether he is deported or can remain in the country.
The administration has repeatedly been accused of failing to follow court orders while sometimes declining to acknowledge that it had not been.
The first instance was on Feb. 10, when a federal judge in Rhode Island blasted the government for having violated his order halting a sweeping federal funding freeze.
“Defendants in some cases have continued to improperly freeze federal funds and refused to resume disbursement of appropriated federal funds,” U.S. District Judge McConnell wrote, even though his order lifting the freeze had been “clear and unambiguous.”
A judge presiding over a case directing the government to lift a freeze on funding for grants from USAID had to issue three orders to get the government to begin complying. The government had argued it was reviewing the grants during that period, which it said it was allowed to do.
In a separate case, nonprofit groups accused the administration of working around a court order on a suspension of grants on refugee admissions by simply terminating the grants.
Impeaching judges
Trump allies inside and outside the administration have frequently criticized judges who have ruled against him — in some cases calling for their removal from office — including Justice Amy Coney Barrett, whom Trump appointed to the Supreme Court in his first term.
“I don’t say this lightly,” Mike Davis, a lawyer and Trump ally, wrote Monday on X. “But the time has come: Tell Congress to Impeach DC Obama Judge Jeb Boasberg for Keeping Terrorists in America.”
Rep. Brandon Gill, R-Texas, said Saturday that he would file articles of impeachment against Boasberg.
Other Trump advisers offered a similar sentiment, that much of what stirred controversy and pushback from critics about Trump’s overreaching is ending no time soon. There seem to be, to date, few guardrails limiting Trump’s ability to skirt court orders, and both attacks on specific judges and ignoring directives from the court are likely to become at least a somewhat familiar feature of his political and policy agenda.
“If activist judges are going to block the mandate we were given, then I see no reason why it should [stop],” said Trump adviser who was granted anonymity to speak freely. “This is, as we view it, a new day. We are getting the country back on track.”
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