An Unwelcome Fight Over Obeying Court Orders

National Review Online

Wednesday, March 19, 2025

 

It sometimes seems that Donald Trump and his most bitter antagonists live in a parallel universe of Trumplaw. In that mode, judges and lawyers abandon legal sobriety and bend the law beyond its recognizable contours in order to thwart Trump. In response, the president and his circle act intemperately by lobbing personal attacks at judges and lawyers, playing fast and loose with facts and the law, and at least flirting with outright defying the rulings of courts.

 

Whenever this happens, we find ourselves returning to first principles — including the importance of getting the details right. Neither bad faith nor bad habits on the part of either side relieves us of the duty to stand for the Constitution, the rule of law, and the proper separation of powers. We shall need all of these long after Trump is gone.

 

This time, Judge James Boasberg of the U.S. District Court in D.C. ordered the Trump administration to halt deporting about 250 alleged members of the Venezuelan Tren de Aragua gang under the Alien Enemies Act of 1798. Via executive order, Trump designated the gang a foreign terrorist organization and declared its foreign national members to be alien enemies of the United States acting at the behest of Venezuela’s regime. That regime is undeniably hostile and malign, but Congress has not declared it a wartime enemy.

 

At a minimum, this is new legal ground. By its terms, the Alien Enemies Act may be invoked either in “a declared war between the United States and any foreign nation or government,” or when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” The law has never before been invoked outside of a congressionally declared war. The Supreme Court found in 1948 in Ludecke v. Watkins that a presidential decision of when to consider the declared war with Germany to have ended involved “matters of political judgment for which judges have neither technical competence nor official responsibility,” but that does not necessarily mean that courts can review nothing the president does after invoking the act.

 

Judge Boasberg ordered the administration to turn around planes headed to El Salvador in midair, apparently outside of American airspace. The judge also purported to order the executive branch to suspend deportations under the order even of people who are not parties to any case before his court. The administration refused to turn the planes around, disingenuously arguing after the fact that Judge Boasberg’s oral directive that it do so was not included in the written summary of the order that the court docketed 41 minutes later. The Justice Department appears to have been less than candid with the court, and is now refusing entirely to cooperate further with Judge Boasberg while pursuing an appeal.

 

Alarmed by the administration’s public stance that it is defying a rogue judge and threatening his impeachment, Chief Justice John Roberts issued an unusual statement that “impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

 

The administration’s case for deportations here is righteous, and if handled properly, it is popular. But our constitutional system should not be its casualty. As with the showdown with Judge Amir Ali over USAID funding, both sides are playing with fire here. In this case, the administration has a weaker leg to stand on.

 

America is ruled by laws that are written down. That is how the people make the rules. In order for rules to be binding, someone must decide what they mean. That is what the Framers of the Constitution meant by “the judicial power,” which they vested in the courts. Voters hire the executive to carry out the rules, in the course of which the president must form views of what the laws mean, but longstanding American constitutional tradition has treated the word of the courts on the meaning of laws as final.

 

Written rules are no less binding on judges; indeed, courts lack legitimate powers outside of them. Where the mandates of law leave room for judgment and discretion, that is typically a job for executive rather than judicial power, and for democratic accountability rather than cloistered and insulated life tenure.

 

For more than two centuries, presidents have chafed at the assertions of the supremacy of the judicial branch, and constitutionalists have raised alarms when the imperial judiciary at times has usurped authorities it was not granted by written law. Yet we have never had a full, open rupture between a president and the courts. We should avoid one so long as possible. Progressive Democrats threatened to defy court orders after Roe v. Wade was struck down; once the principle is established in the public mind that such things can be done, it will be a hard principle to limit.

 

There are two situations in which the executive may have a persuasive case for defying a judicial order. The strongest, which was at issue in the USAID case, is where an individual judge is trying to order something irreversible that cannot be fixed by an appeal. In that case, the judge stands against not only the president but also the appellate courts. But Judge Boasberg has not ordered that gang members be released to disappear into the country, only that their dispatch to a Salvadoran prison be delayed.

 

The second is where a judge’s order exceeds the remedial powers of courts in dictating matters of executive discretion and management. For example, the Trump administration has argued with some justice that courts cannot compel the executive branch to employ — even briefly — officers who wield executive power over our citizens in defiance of the president. That also is not at issue here. Judge Boasberg is simply stalling deportations.

 

A third argument is that the executive may defy orders outside the jurisdiction of courts. This sounds appealing in theory, but in practice, a great many legal questions can be framed as disputes over jurisdiction. Here, the Supreme Court — wrongly, we believe, but conclusively — ruled in 2008 that even Congress may not strip the courts of power to review the U.S. government’s detention of foreigners simply by locating their detention outside of the territorial venue of any judge.

 

Weakest of all is the claim that no judge may review these deportations. As broad as is the legitimate power to deport aliens, a claim of due process violations under the Fifth Amendment cannot be resolved without a court at least deciding whether it has the power under law to hear them.

 

The practice of individual judges, in locales favorable to the litigants, issuing injunctions that are nationwide in scope and affect parties not before the courts raises many grave objections. Some of these are better resolved by Congress reforming the process, but the Trump team has just cause to complain.

 

The White House should make clear that it will abide by the decisions of the appeals courts, and leave it at that. This is the wrong case to pick a wider fight with the legal system, no matter how well it polls. Given that Judge Boasberg has only delayed Trump’s actions, and that an appeal has already been filed, further escalations by either side are unnecessary and damaging to the American constitutional settlement. As for Chief Justice Roberts, he did not help matters by lacking the courage to nip judicial adventurism in the bud in the USAID case. While he is right to be concerned at executive blowhardism, in this instance, he can best defend his branch’s legitimate powers by tending to his own house.