How to Hide a Constitutional Crisis
America seems to be waiting for a clear indication that the country is in a constitutional crisis. Perhaps President Donald Trump will say, "I am defying a court order, and good luck trying to do anything about it." But short of that, America's constitutional crisis was always going to be a bit subtler—and that subtler crisis is already here. The administration is already flouting court orders. It's just that, rather than admitting so, executive-branch officials are saying one thing but doing another. We have spent the past few monthssurveyingthe second Trump administration's practice regarding court orders and reviewed dozens of cases. Weobserved a clearpattern: The administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. We call this "legalistic noncompliance," a term intended to capture how the administration has deployed an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight. It is a powerful strategy, as it obscures the substance of what the administration is doing with the soothing language of the law. Although the country is not yet six months into the second Trump administration, already many examples of the phenomenon have emerged. Consider some of the arguments that have come up in the litigation over the Alien Enemies Act, which involves the president's attempt to designate certain Venezuelan nationals as "alien enemies" and imprison them in El Salvador with little judicial process. At the initial hearing in the first case challenging the AEA designation, the district court ordered the administration to turn around any planes that had departed for El Salvador. The judgetold the government thatany people on a plane "that is going to take off or is in the air" must "be returned to the United States. However that's accomplished, whether turning around a plane or not [dis]embarking anyone on the plane." The court also directed the government not to remove any additional people from the U.S. under the AEA proclamation. The government followed neither order. Instead, it landed at least two planes in El Salvador and transferredtransferred its involuntary passengers to a mega prison. The government nonetheless insisted that it had complied with the court's orders. The government first argued that the judge's directive to "not remove" anyone else pursuant to the AEA declaration merely prohibited the government from taking people from within the borders of the United States to anywhere outside of those borders. Because the planes had already left U.S. airspace at the time of the order, they were not "removing" anyone. That argument relied on a technical, legal parsing of what it means to "remove" someone. It wasalso utterly baseless. In various immigration and migration matters, to remove someone means to take them to another country where they are then allowed to enter. But more fundamentally, the theory totally ignored that the judge had directly said to turn the planes around, and his emphasis on the importance of the United States not relinquishing custody or control of people to El Salvador. In the course of the same proceeding, the government put forward several other weak legal arguments. It maintained, for example, that the district court abruptly revoked its earlier direction to turn any planes around, because the court did not specifically repeat that direction in the written order it issued after ruling orally. The government argued several times that the court's written order "controls," using language that sounds like law. But here, too, the government's legal analysis was nonsense. The district court's written order incorporated, by reference, the terms of the earlier hearing. The governmentgave no other reasonto think the district court had done a 180. There is also the case of Kilmar Abrego Garcia, the man mistakenly deported to El Salvador because of an administrative error. In that case, the district court ordered the administration to facilitate Abrego Garcia's return. In and out of court, the administration has insisted that it has no control over someone who is in the custody of a foreign sovereign. This argument, too, is presented in the trappings of law, invoking concepts such as custody and sovereignty. But applied to the facts, it makes little sense. Trumphas admittedthat he could get Abrego Garcia back with a mere phone call to President Nayib Bukele of El Salvador, who is holding American deportees not simply as a foreign sovereign but pursuant to an arrangement with the United States. The administration's practice of legalistic noncompliance has extended well beyond the high-profile AEA litigation. In the case challenging the administration's freeze on funds designated for the United States Agency for International Development, the governmentimplausibly assertedthat it had complied with the court's order halting the freeze even though, after the order, it canceled all but 500 of the more than 6,000 USAID contracts. The administration asserted that, in mere weeks' time, it had canceled all of the contracts through a process permitted by the court's order—an individualized, one-by-one analysis of every single contract that somehow determined whether each arrangement was performing. The administration tooka similar tackin the litigation over the future of the Consumer Financial Protection Bureau. After a district courtorderedthe government to halt its stop-work orders to CFPB employees and its mass terminations at the agency, the government nevertheless sent dismissal notices to more than 1,000 CFPB employees. Thegovernment claimedthat it did so not pursuant to the policy blocked by the court. Rather, it said, it had done as the court would have had it—individually assessing whether each of the employees should be retained while also analyzing whether the CFPB could perform its statutory functions without certain employees. [Adam Serwer: The constitutional crisis is here] Some may understandably view the government's practice of legalistic noncompliance as preferable to a world of outright noncompliance—that is, where the executive branch explicitly asserts the power not to comply with court orders. After all, with legalistic noncompliance, the government at least frames its arguments in the language of the law and claims that it is trying, in good faith, to comply. Legalistic noncompliance is still quite concerning. For one thing, it lowers the public salience of noncompliance. The overwhelming majority of the public views noncompliance as a rubicon that should not be crossed. If the administration were to openly assert the power not to comply with court orders, that would likely provoke significant public opposition and political pushback. Legalistic noncompliance, by contrast, allows the government to pursue noncompliance but without many of its attendant costs. Legalistic noncompliance can look a lot like lying—the government insisting that it is obeying an order when it's simply not. But it's more than that. By advancing outlandish arguments in such a wide range of cases, and to a judiciary controlled by a conservative Supreme Court, the administration is hoping to wear down the courts through sheer force of will. And it's banking on the fact that, in some cases, those courts will assist the government's efforts to weaken judicial oversight of its actions. In this respect, consider that although legalistic noncompliance avoids signaling to American citizens that they need to be concerned about compliance, it sends a different message to judges and executive-branch officials. The judges assessing the administration's arguments, as well as the officials making them, can see that the administration is not complying with court orders, and with no valid reason. That dynamic, in turn, could lay the groundwork for outright noncompliance. It could also produce something we call "legalized noncompliance"—where courts, fearful of outright noncompliance, issue rules that allow judges to say the administration is complying with court orders when, in reality, the administration is doing little or nothing to carry out a court's ruling. Some indications that the Supreme Court has already legalized partial noncompliance have emerged. The Court has, for example, made it harder to challenge a number of the administration's actions, which reduces the odds of an unfavorable court ruling that might result in explicit noncompliance. The Supreme Court has also adopted legal standards that give courts and executive-branch officials considerable wiggle room within which to maneuver, and specifically to insist that the executive branch is complying with a court order even though it is not doing that at all. In the Abrego Garcia case, for example,the Supreme Court toldthe lower court that it could direct the government to "facilitate" Abrego Garcia's return, but questioned whether the court could order the government to "effectuate" it. The government has seized on that distinction in continuing to fight Abrego Garcia's release. At the same time, the president's dwindling support, coupled with continued public focus on the AEA litigation and Abrego Garcia's case in particular, may make it easier for courts to push the administration to comply with their orders not just with words but with actions as well. In an encouraging sign, a district court in Massachusetts acted swiftly this past week when lawyers alleged that the federal government was on the brink of violating an order prohibiting it from removing people to third countries (i.e., to countries other than those designated in removal proceedings) with little process. (The government had put a Burmese national and a Venezuelan national, among others, on a plane to South Sudan, a country under threat of renewed civil war.) After hearing from the lawyers, the judge directed the government to maintain custody and control over the individuals so that they could not be transferred, possibly irrevocably, to a foreign sovereign. The judge alsomade plainthat "The Department's actions in this case are unquestionably violative of this court's order." And the courtrequired the governmentto give the men notice and what could amount to weeks of additional process to assert claims for relief. As a strategy, legalistic noncompliance has force only when each case is viewed in isolation and not subject to public scrutiny. But if courts and the public start to recognize this pattern, it could—and should—lose its power. Article originally published atThe Atlantic
How to Hide a Constitutional Crisis America seems to be waiting for a clear indication that the country is in a constitutional crisis. Perha...
