WASHINGTON — President Donald Trump and his allies have launched a multi-pronged attack on the judiciary, punctuated over the weekend by his decision not to comply with a federal judge’s order to halt the deportation of hundreds of Venezuelans to El Salvador.
It was not the first time the two-month-old Trump administration did not comply with a federal court. Judges have said their orders to unfreeze spending on a variety of foreign and domestic programs have been brushed aside by the president.
Battling the judiciary could face its ultimate test if the Supreme Court, which includes three justices appointed by Trump, rules against the administration. So far, the court has stayed largely on the sidelines.
The fight over alleged gang members comes as the administration also uses its immigration policies to push the limits of how laws are applied to legal permanent residents and visa holders.
The Department of Homeland Security has cited Secretary of State Marco Rubio’s power to revoke green cards and visas of those it believes “would have serious adverse foreign policy consequences for the United States,” and is using that argument to take away the green card of Mahmoud Khalil, a pro-Palestinian activist who finished his graduate studies at Columbia University in December.
The administration has said it has evidence of Khalil’s connections to Hamas but has not shared it publicly. He has not been charged with committing any crimes.
A similar case was made in deporting Dr. Rasha Alawieh, an assistant professor at Brown University, over the weekend. The power was there, but the use of it in this manner against legal permanent residents is rare.
More broadly, Trump is claiming nearly limitless power for himself through a campaign to delegitimize institutions that have long acted as checks on the presidency. Beyond the courts, his administration has closed the congressionally authorized U.S. Agency for International Development, fired thousands of federal workers and paused legally appropriated funding for a wide array of federal programs. He has also stepped up a decade-long effort to discredit independent institutions, including universities and nonpartisan media.
“We are watching the accumulation of power in one person, which is antithetical to our constitutional democracy,” said Kim Wehle, a professor at the University of Baltimore’s law school who has written several book on aspects of the Constitution.
“He now is the law,” she said of Trump. “He decides what’s legal and not legal. He decides winners and losers, and it’s arbitrary.”
‘I don’t care what the judges think‘
The White House’s messaging on the weekend deportations — largely of people who the administration says are allegedly involved in the Tren de Aragua gang — landed on an argument that Judge James “Jeb” Boasberg did not have the authority to intervene, even temporarily, to stop Trump from expelling immigrants under the 18th century Alien Enemies Act.
“A single judge in a single city cannot direct the movements” of deportees after they have left the country, Leavitt said in a statement Sunday, adding that the judge’s order had no “lawful basis” because the individuals “had already been removed from U.S. territory.”
The Justice Department made the same argument in a court filing on Monday signed by Attorney General Pam Bondi. In a separate filing, the department asked an appeals court to immediately halt the case and prevent Boasberg from presiding over it going forward.
Boasberg had ordered the administration to immediately turn around any plane that had not yet landed — an instruction that Leavitt also said carries no weight because it was oral, rather than written.
Boasberg, during a fact-finding hearing on Monday evening, repeatedly asked a government attorney for answers to basic questions about what the administration did to comply with the order. He summarized the government’s position as: “We don’t care, we’ll do what we want.”
He then said he would issue a written order requiring the government to answer certain questions, “since apparently my oral orders don’t appear to carry much weight.”
ACLU attorney Lee Gelernt said after the hearing before Boasberg Monday that there are difficult, polarizing decisions made by courts 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 (55%) of registered voters 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 on Fox and Friends Monday morning. “I don’t care what the judges think.”
Despite the rhetoric against judges and 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, Samuel Bray, a professor at the University of Notre Dame Law School, said that in his view, Trump officials were in contempt of Boasberg’s order.
“If a court gives an order and a court has jurisdiction and the party whose 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,” he added. In this context, the refs in question are the nine members of the Supreme Court.
Four Democratic senators issued a statement Monday rebuking Trump 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 non-citizens 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,” Sens. Alex Padilla of California, Cory Booker of New Jersey, Richard Durbin of Illinois and Peter Welch of Vermont wrote.
“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 the U.S. Agency for International Development had to issue three orders in order to get the government to begin complying. The government had argued it was reviewing the grants during that time period, which it said it was allowed to do.
In a separate case, non-profit groups accused the administration of working around a court order on a suspension on 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 on X Monday. “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 on 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 over-reaching 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 the president’s 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 one Trump adviser granted anonymity to speak freely. “This is, as we view it, a new day. We are getting the country back on track.”
The person would not speak to whether there is a specific strategy that the Trump administration is putting together to gauge when it will or will not follow court orders, but they indicated the idea of disregarding those they don’t agree with will remain on the table.
“One person can not dictate our nation’s policies,” the person added, echoing a frequent refrain from Trump allies that suggests no one should have authority to limit his power in any way.
Last month, a Trump adviser who was granted anonymity to speak freely told NBC News that they expected judges to try and thwart Trump’s agenda, which at the time was focused largely on early-administration executive orders.
“The courts can be expected to do this,” a White House official familiar with Trump’s thinking said at the time. “The unfortunate part is the wait time to get it to the superior courts and even to the Supreme Court if necessary.”
“We are careful in drafting the text of executive orders to make the possibility of court challenges being successful, but this is an occupational hazard,” the person added.
Over the weekend, prominent Trump supporters set their focus on Boasberg, the chief judge in U.S. District Court for the District of Columbia, after he ordered the administration to stop this weekend’s deportations.
Boasberg, a lanky former basketball player at Yale who grew up in Washington, took over as chief judge on the court two years ago. He was immediately thrust into critical issues surrounding former Special Counsel Jack Smith and the federal grand jury investigating Trump — which ultimately resulted in Trump’s indictment on charges related to his handling of classified materials and his efforts to overturn the 2020 election.
In his position as chief judge, Boasberg is likely well aware of the threats for his colleagues, including Judge Tanya Chutkan, whose home was targeted by a “swatting” attack last year, when she was overseeing Trump’s Jan. 6 case.
Boasberg, like other federal judges in Washington, handled a large number of Jan. 6 cases.
In an official statement on Saturday night, Attorney General Pam Bondi referred to Boasberg as “a DC trial judge” who, she claimed, “supported Tren de Aragua terrorists over the safety of Americans.”
Last week, federal judges took the unusual step of warning in public about government officials targeting judges and suggesting impeachment because of individual court rulings.
“It’s a shame to see people attacking judges simply for doing their level best to do their job,” Judge Jeffrey Sutton, who serves on the Cincinnati-based 6th U.S. Circuit Court of Appeals, told reporters.
Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, said that Trump’s Saturday decision to ignore Boasberg’s order “seems like more explicit defiance” than the administration’s actions in previous cases.
“If the executive can defy court orders whenever they feel like it, they are essentially not constrained by the Constitution and the laws any more,” he added. “If they defy court orders and get away with it they can basically do things that are illegal and there would be no easy way of stopping them.”
