Donald Trump’s contemptuous view of the courts was bound to lead to bring the country to this: A federal judge writing, “The Constitution does not tolerate willful disobedience of judicial orders.”
D.C. Federal Judge James Boasberg, in a nearly-50-page opinion issued yesterday, explains why he’s reaching for a nuclear option: potentially holding federal officials in contempt for their violations of his order instructing them to turn planes of El Salvador-bound detainees around after Trump’s recent invocation of an 18th-century wartime power to remove them.
It’s incredible that under three months into the administration, we seem headed for the constitutional courts versus executive showdown that democracy observers have long pointed to as the real, final stress test of our constitutional system by a president that has seemed hell-bent on destroying it.
Thankfully this judge, unlike Congress, is unwilling to allow his power to be usurped freely without a fight.
Any other party that had engaged with the court in the manner that the administration has would have faced contempt long ago. The second a private lawyer told a federal judge that his oral orders carried less weight somehow than written ones and that they would not answer questions about the very basic facts of the case, they would have been instructed to make arrangements for any kids or pets and come back to court with a toothbrush.
That this hasn’t happened is only because the courts have traditionally given some deference to the executive and generally assumed that it and its officials and lawyers are acting in good faith. It seems long past time to acknowledge that, unfortunately, this is not true.
This administration in particular has no interest in complying with the law or acting in ways that uphold traditional separation of powers, due process reasoned governance, equal protection or any of the other deep-seated principles that despite imperfect application have long undergirded our system.
They’ve made this clear by all but daring the courts to do something about it, hoping to call a bluff. In the separate case of Kilmar Abrego García, a Maryland father illegally sent to the CECOT mega-prison in El Salvador, the administration has gone from acknowledging that they made a mistake to insisting that they will not only not comply with Maryland Federal Judge Paula Xinis’ order to take steps to facilitate his return but will in fact detain and remove him again if he somehow ever finds his way back.
This is after the Supreme Court ruled 9-0 that the government had to comply with Xinis’ directives; now the White House press secretary and Trump himself are mocking the very idea that they would. The Justice Department fired a career lawyer for daring to candidly answer the judge’s questions as opposed to fully adopting the administration’s stance of aggressive pushback.
The federal judiciary, starting with trial judges like Boasberg and Xinis and up through the Supreme Court, must show that their authority is not a bluff, and that there will be consequences for flouting it. The administration is already appealing, and will no doubt try to weasel out of responsibility. It shouldn’t be allowed to do so. If that includes holding specific officials in contempt, up to and including fines and prison time, then so be it.
