The Trump administration’s compliance with court orders began with drag and turned to semantic gymnastics, and has now reached the forefront of complete resistance.
Much of President Trump's agenda has been tied to court and has been challenged in dozens of lawsuits. The government has frozen the money the court ordered to spend. It has prevented the Associated Press from the White House Press Pool despite a court order that it allows news organizations to participate. Moreover, it ignored the judge's instructions to return to a plane carrying Venezuelan immigrants and resided in the notorious prison in El Salvador.
But what legal scholars say is a worrying trend in the case of immigration to El Salvador. The government deported immigrant Kilmar Armando Abrego Garcia to El Salvador, despite a special ruling by an immigration judge in 2019 and directly banned this.
Until recently, this has not been controversial. “The U.S. acknowledged that Abrego Garcia was compliant with the pre-order prohibiting him from resigning to El Salvador, and it was illegal to evacuate El Salvador,” the Supreme Court said in all review orders without signatures on Thursday.
The justices upheld part of Judge Paula Xinis, the Federal District Court of Maryland, which orders require the government to “promote” Mr. Abrego Garcia's return. At that time, he was held in one of the dirtiest and most dangerous prisons on Earth for nearly a month.
The government's response was to question, stall and ignore the information requests filed by Justice Sinis. During an Oval Office meeting between Mr. Trump and El Salvador President Nayib Bukele on Monday, both made it clear that they had no intention of returning Mr. Abreg Garcia to the United States.
Speaking in an Oval Office and on TV, Mr. Trump’s domestic policy adviser Stephen Miller said earlier concessions made by the administration in previous applications filed by several officials and the Supreme Court were themselves wrong, the job of a rogue lawyer. He added that the Supreme Court unanimously endorsed the government's position that judges may not interfere in foreign policy.
Conservative legal commentator Ed Whelan said it was a misreading of the ruling.
“The government is clearly in malicious action,” he said. “The Supreme Court and the District Court have properly given the means to choose the means to be taken to ensure Abrego Garcia returns. The government basically does nothing and abuses freedom.”
White House officials did not respond to requests for comment.
The government also responded to the court's orders by talking to audiences outside the court in other ways to block its plans. Mr. Trump and his allies have carried out relentless rhetorical attacks on several judges who ruled against the president, sometimes calling on them to impeach each, while others have hinted that Mr. Trump is not bound by the law.
Legal scholars say the challenge of evaluating whether the government violates the courts is the complexity of the new phenomenon, and legal scholars say they point to their so-called collapse, the credibility of the Justice Department’s representation. Today, its lawyers are sometimes sent to court without information, sometimes directed to make arguments that are practically or legally unfounded, and sometimes punished for honesty.
Therefore, rebellion may not be a direct statement that the government will not comply with the ruling. This could be the appearance of an unfortunate attorney who possesses or claims no information. Or it could be such a strange legal argument that it is equivalent to being rude.
Sanford Levinson, a law professor at the University of Texas, said the Trump administration has exposed double fault lines within the constitutional structure and the scope of advocacy.
Professor Levinson said: “I think at least some of the Trump administration's arguments have crossed that line. But, frankly, I really don't know where the line is.”
Courts often bring doubts to government lawyers, believing that they will act sincerely even if they have ambitious debates about the broad concept of executive power.
“We’ve gone beyond that,” said Marin Levy, a law professor at Duke University. “It’s shocking that we even had to ask if the government didn’t comply with court orders.”
Hours after the Supreme Court ruled the case of Abrego Garcia, Justice Sinis asked the government three questions on Thursday night: Where was Mr. Abrego Garcia imprisoned? What steps did the government take to bring him home? What other steps does it plan to take?
At first, the government's lawyers refused to respond and said in Friday's court documents that they needed more time and that they had no answers to the judge's questions at the hearing that day.
Judge Sinis wrote that they “failed to comply with the court’s orders” and she called for daily updates at 5 p.m., a deadline the government is deemed to be recommended.
On Saturday, a government official reluctantly admitted: “Currently, Abrego Garcia is being held at the terrorist imprisonment centre in El Salvador.” The official said nothing about what the government has done to promote the return of prisoners.
Mr. Abrego Garcia's lawyer urged Judge Sinis to consider defiance of the government.
Ilya Somin, a law professor at George Mason University, said the government “of course violated the resistance in the Abrego Garcia case”.
“At least, they may be ambiguity in the meaning of 'promotion'. It is unreasonable to interpret the term as meaning that they do not require real effort,” he said.
In a summary filed on Sunday, the government argued that the Supreme Court’s request for it “help” Mr. Abreg Garcia’s return simply means it must “removal of any domestic barriers that would otherwise hinder the ability of aliens to return here.”
Michael Dorf, a law professor at Cornell University, wrote in a blog post, “Don't pass the laugh test.”
Nevertheless, last week’s Supreme Court ruling still provided some room for the government, especially instructing Judge Sinis to clarify her initial ruling to “appropriately consider respect for the administration’s diplomatic affairs”. The decision added: “In part, the government should be prepared to share the prospects for the steps it has taken and the further measures.”
If the government sticks to its hard-line approach, this controversy seems certain to return to the Supreme Court. The lower court ordered Mr. Abrego Garcia to give back or despise officials, and the government would surely again ask the Supreme Court to intervene. And if Abrego Garcia's lawyers cannot get his reward, they will also seek further help from the judge.
Other disputes have also raised questions about whether the government violated the court. For example, a district court judge in Washington ordered the White House to withdraw from its prescribed policies, prohibiting the Associated Press from leaving the news. But the government showed no signs.
Last week, Judge Trevor McFadden ruled that the White House discriminated against wire services by using access with the president as leverage to force its journalists to adopt the term “American Bay” within coverage. When the exit was rejected, the White House began to turn journalists out of the daily pool of journalists covering the president.
Until February, the Associated Press and its competitors, such as Reuters and Bloomberg, reliably dispatched journalists to travel with an Air Force One president and covered exclusive events daily in the Oval Office and the East Room.
Judge McFadden, who recognized that the government would likely challenge his ruling, suspended his decision until Sunday, the government appealed immediately on Thursday. But that stay expired on Monday and the Court of Appeal did not intervene to secure it in place.
Even so, the government does not allow printing journalists or AP photographers to be included in the pool to cover Monday's events, including meetings between Mr. Trump and Mr. Buckler. The White House's sole acknowledgement of the deadline appears to be a request for the Court of Appeal to resume temporary stays in a filing filed on Monday.
In other cases, the Trump administration appears to have taken advantage of the chaos.
Democrat-led contractors and states repeatedly reported that payments are still being lifted after a judge ordered the government to liberate funds from contracts and grants paid by the U.S. Agency for International Development and FEMA. Twice in February, the judge approved a motion to enforce his order and found the government was delaying.
At least in the lower courts, the gap between lawyers’ stubbornness and unified resistance seems to be diminishing. For now, neither the president nor the justices are eager for an ultimate constitutional confrontation.
“If the Supreme Court said, 'Bring someone', I would do that,” Trump said Friday. “I respect the Supreme Court.”
Zach Montague Contribution Report
