Up to now, the president and his team had criticized the decisions of numerous courts that had halted their most controversial decisions, issuing temporary orders to prevent funds freeze, mass layoffs, or deprivation of citizenship rights to the children of undocumented immigrants, among many other causes. But they had complied. Not anymore.
On Saturday night, the agencies responsible for deporting over 200 Venezuelan citizens to El Salvador, accused of being terrorists according to the new doctrine, deliberately ignored a federal judge's order, which required halting the process even if the planes were already in the air.
The Trump Administration not only did not comply with the order, but figures like Elon Musk or Secretary of State Marco Rubio mocked it, sharing on social media Salvadoran President's message Nayib Bukele saying "oops, too late," along with laughing emojis, sharing a news headline about Federal Judge James Boasberg's decision. "We will not stop. I don't care what the judges think. I don't care what the left thinks. We are going all the way," said yesterday in an interview the border czar Tom Homan in a defiant tone.
The Executive argues that it did not disobey the order but ignored it because it arrived too late. However, the decision, orchestrated according to Axios by White House Deputy Chief of Staff Stephen Miller, is part of a larger and very ambitious strategy that has mobilized all Republican heavyweights and MAGA universe (Make America Great Again). A carefully measured step to see what tools the judges have to react if the Executive stands firm. Trump and his advisors argue that the courts are overstepping their powers (ultra vires) and are also not respecting the Supreme Court's view, interpreting that when the highest court said that the president has immunity for everything he does in his official acts, that also means he has almost total freedom to shape foreign or immigration policy.
The White House press secretary has stated in the last 48 hours that "the Government did not 'refuse to comply' with a judicial order," but that "the order, lacking legal basis, was issued after the terrorist foreigners from Tren de Aragua had already been deported from U.S. territory. The written order and the Government's actions do not conflict. Furthermore, as the Supreme Court has made clear on numerous occasions, federal courts generally do not have jurisdiction over the President's management of foreign affairs, his powers under the Enemy Combatant Act, and his fundamental powers to expel terrorists and repel a declared invasion," she added.
The clash entered a second, even more controversial phase this Monday, at the hearing called by Boasberg to demand explanations from the Government. First, the Department of Justice, led by Pam Bomdi, until recently Trump's personal lawyer, asked the judicial body to immediately replace the assigned judge. "The court should also immediately reassign this case to another judge of the district court given the highly unusual and inappropriate procedures (for example, the certification of a class action involving members of a designated foreign terrorist organization in less than 18 hours without discovery or government information) that have been employed in the district court proceedings to date," says the filing submitted by the Deputy Attorney General.
But sparks flew at the hearing, where Boasberg, increasingly astonished and irritated, saw how the Justice Department's representatives refused to answer his questions and provide him with the information he requested, or argued that the order to reverse the deportation flights issued on Saturday was not binding because it was verbal. The lead attorney, Abhishek Kambli, said in a tense exchange that he was only authorized to provide very limited information due to "national security concerns". The judge's response was that Justice must certify in writing by noon on Tuesday —under seal if necessary— that "no immigrant was deported after the entry into force of his written order," the critical detail to establish whether the administration abused its authority and deliberately disobeyed, or played with the timing between when the order entered the system, around 7:30 p.m. on Saturday, and when the affected flights landed in El Salvador or crossed its airspace.
The approach, by itself, leads to an immense legal discussion that will likely end up in one way or another in the Supreme Court, as the final part of the statement summarizes the issue at stake, which some conservative academics consider the key to everything: "A single judge in a single city cannot direct the movements of a plane full of foreign terrorists who were physically expelled from U.S. territory."
But the crisis runs much deeper. The New York Times reported on Sunday the case of Dr. Rasha Alawiew, a kidney transplant specialist and professor at Brown University's Medical School, who was deported over the weekend, despite having lived in the country for years, having a perfectly valid visa, and a temporary court order blocking her expulsion, according to her lawyer and court documents. There are more examples of detentions and deportations bypassing established processes, which require hearings, trials, or magistrate decisions, which they systematically try to ignore.
Furthermore, in a surreal twist even by current standards, the president stated early Sunday morning that the pardons signed by Joe Biden in his final days in office are "null" and "have no value or effect." But if such a statement with huge consequences were not enough, the most striking aspect is the argumentation: Trump maintains that these decrees were signed by an automated machine (Autopen) controlled by Biden's advisors, who, according to his theory, may not have been aware of them "or approved them." Therefore, he added, those affecting the congressional committee investigating the events of January 6, 2021, "and many others," are "declared null, void, and without effect, because they were granted by Autopen. In other words, Joe Biden did not sign them, but, more importantly, he knew nothing about them!"
It is currently unclear whether this will remain a tantrum (although this Monday the president decided to withdraw all Secret Service protection from Hunter Biden, the former president's son, and his wife after a journalist told him they had a team of up to 18 agents for a trip they are taking this week to South Africa), whether it will simply be incorporated into his usual narrative, like insults or the assertion that the 2020 elections were rigged and that's why he lost. Or if indeed the Department of Justice or the FBI, led by two of his loyal collaborators, are actually considering challenging the pardons in some way and conducting a criminal investigation, however limited, as the Department of Justice standards in place for decades say it is perfectly valid. One more step towards the constitutional crisis in which the Supreme Court will have the final say. Or perhaps the penultimate.