WASHINGTON — It was just the latest example of President Trump, still in the infancy of his second term, appearing to plow through direct orders from a U.S. court. But it was the sharpest moment yet of a federal judge losing patience.
U.S. District Judge Paula Xinis had asked what the administration had done, if anything, to follow a ruling from the highest court in the land, and reached a stark conclusion.
“To date, nothing has been done,” Xinis told the Justice Department lawyer before her Tuesday. “Nothing.”
The Supreme Court had ordered the administration last week to “facilitate” the return of a Maryland resident named Armando Abrego Garcia, whom it had deported to a notorious El Salvador prison despite an earlier court order barring such a move.
The administration had defied that order and made no secret of it. On cable TV, through social media and from the Oval Office, the president and his allies were clear they had no intention to work toward Abrego Garcia’s return.
Still, Xinis’ concluding as much in court added fresh weight to a profound question swirling with increasing intensity in recent days among government officials and watchdogs, constitutional scholars, legal experts and worried members of the public: If the president refuses to abide by court rulings, then is the United States in a constitutional crisis?
If Trump won’t listen to the Supreme Court, is the entire U.S. system of governance — the separation of powers, an independent judiciary, due process under the law — at risk of faltering?
For some, the answer is an affirmative yes — the actions of the administration in the Abrego Garcia case a clear tipping point.
“There is no guarantee that President Trump will abide by his legal and constitutional obligations, and he has already shown a willingness to violate those obligations many times over,” said Jamal Greene, a constitutional law professor at Columbia University.
Others said that the risk is certainly there, but that legal nuance remains in the maneuverings of the Trump administration — enough to imagine a less fraught future in which the administration falls back in line as the courts make their directives in the Abrego Garcia case less ambiguous and harder to skirt using dubious but still barely defensible legal arguments.
Robert Weisberg, a professor at Stanford Law School, said the judiciary also still has tools at its disposal to enforce its rulings should Trump and his team continue defying court orders, and especially the Supreme Court.
For example, if a court issues an injunction “saying, ‘You can’t do this,’ ” and the administration does it anyway, the court can hold the administration in contempt. And, the U.S. Marshals Service, the law enforcement arm of the judicial branch, can be called upon to enforce the court’s orders, Weisberg said.
“So there are ways,” he said. “The Supreme Court has tools.”
A deportation with consequences for Trump
Either way, the case raises stark questions for a country already exhausted by a steady stream of unprecedented moves by the Trump administration and a mountain of lawsuits challenging them — on immigration enforcement, federal funding streams to the states, LGBTQ+ rights and school funding, among many issues.
California Atty. Gen. Rob Bonta’s office has already sued the Trump administration more than a dozen times and expressed support for litigants suing the administration in at least half a dozen other cases. Other Democratic-led states have joined California in its cases.
Time and time again, courts have blasted the administration for violating the law — sometimes in flagrant ways. And in multiple instances, the administration has defied court instructions to reverse course, judges and litigants against the administration have said.
California has alleged that the administration has failed to unfreeze funding, including under the Federal Emergency Management Agency, despite court orders for it to do so. Associated Press journalists continued to be barred from White House functions after a judge ordered they be allowed back in. The Trump administration balked at another court order that it return immigrants who had been loaded onto a plane for deportation, arguing that the plane was already in the air and out of the judge’s jurisdiction.
Still, the Abrego Garcia case and an Oval Office meeting partially about it between Trump and Salvadoran President Nayib Bukele on Monday have ratcheted up fears of a recalcitrant Trump unafraid of defying the courts when they attempt to check him or his policies.
Abrego Garcia, a Salvadoran citizen and sheet metal worker living in Maryland, had been arrested years ago while looking for work outside of a Home Depot in Maryland. A judge had determined in 2019 that he should not be deported to El Salvador because he would be in danger there from a local gang, allowing him to remain in the country.
However, Abrego Garcia was detained last month on claims by the administration that he is a member of the MS-13 gang, and then deported along with other detainees to a notorious prison in El Salvador. His family, denying the gang allegations, sued in response, alleging that his rights had been violated and that the administration had broken the law and the previous judge’s decision allowing him to remain in the country.
The case moved swiftly up through the courts.
‘Facilitate’ vs. ‘effectuate’?
When it was first before Xinis, she found that the evidence of Abrego Garcia’s alleged gang affiliation was slim — amounting to a tip from an informant that he’d worn Chicago Bulls apparel associated with the gang — and that the government had wrongfully removed him from the country. Xinis then ordered the Trump administration to both “facilitate” and “effectuate” Abrego Garcia’s return to the United States.
The Trump administration appealed that ruling, resulting in a terse unsigned decision by the Supreme Court on Thursday that required the Trump administration to “facilitate” Abrego Garcia’s return, but not “effectuate” it.
The high court said the “intended scope of the term ‘effectuate’” was unclear and may exceed the district court’s authority in the matter, and called on Xinis to clarify her directive “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
Abrego Garcia’s lawyers claimed the ruling as a victory and a clear directive to that administration that it have him returned to the U.S. The Trump administration, however, claimed a victory as well.
“As the Supreme Court correctly recognized, it is the exclusive prerogative of the president to conduct foreign affairs,” a Department of Justice spokesperson said. “By directly noting the deference owed to the executive branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the president’s authority to conduct foreign policy.”
Xinis followed the Supreme Court’s ruling by issuing another of her own, calling again on the Trump administration to “facilitate” Abrego Garcia’s return. That set up the Oval Office meeting Monday, where Trump and Bukele insisted they were not going to bring Abrego Garcia home.
In what some legal observers saw as an absurd twist of logic, Trump administration officials said they would supply the plane to return Abrego Garcia if only El Salvador would allow it, while Bukele said El Salvador could not possibly return Abrego Garcia to the U.S. because doing so would amount to smuggling a terrorist into an allied territory.
“Of course, I’m not going to do it,” he said. “The question is preposterous.”
In the same meeting, Trump said “the homegrowns are next” — a clear insinuation that he wants to send American citizens to Salvadoran prisons next, in clear violation of American law.
During Tuesday’s hearing before Xinis, the Trump administration made it clear that it took an extremely narrow view of what facilitating Abrego Garcia’s return requires.
“If Abrego Garcia presents himself at a port of entry, we will facilitate his entry to the United States,” said Drew Ensign, an attorney for the Justice Department. Ensign also submitted a transcript of the Oval Office meeting, suggesting the case had clearly been “raised at the highest level.”
Xinis was unmoved, demanding documentation of the administration’s actions in recent days. Legal experts said the order could set the stage for Xinis to find the Trump administration in contempt of court. And that could raise new questions about the power of the court to hold the administration to account — and whether it has any teeth in the event the administration pushes back.
Erwin Chemerinsky, dean of UC Berkeley Law, said it’s questionable whether the Justice Department or the U.S. marshals would help to enforce any criminal or civil contempt orders against the administration or any of its actors.
“The question is, do we have the guardrails for our Constitution to survive?” Chemerinsky said. “‘We don’t know’ is the only answer anyone can give. You can play it out, and it’s very frightening.”
If Trump was given a very clear, unambiguous order from the courts and openly declared that the administration would not comply, the country would be in an extremely dangerous position, Chemerinsky said.
And if he won out in that scenario — wasn’t stopped by Congress or the courts or anyone else — “then the president can do anything,” Chemerinsky added. He could violate other constitutional laws and court orders and “literally lock up anybody, any dissident,” without fear of repercussions.
“Of course then the reality is this is not a democracy, it’s a dictatorship,” Chemerinsky said.
‘Crisis is here’
Democrats in Congress have been sounding similar alarms, with some arguing that Trump has already crossed the line into authoritarian behavior — and thrust the country into a constitutional crisis.
Sen. Adam Schiff (D-Calif.) wrote in a post to X late Monday: “The constitutional crisis is here.”
The post also included a nearly six-minute video in which Schiff, a former federal prosecutor, attempted to explain the complicated Abrego Garcia case, the administration’s actions in it, and why they put the country in crisis.
“It’s a constitutional crisis because the administration is under a court order to return this wrongfully deported man to the United States. To facilitate his return,” Schiff said. “And far from taking any step to facilitate his return, in that meeting in the White House, Donald Trump essentially told the Supreme Court to pound sand.
“Nowhere in that entire meeting does the president of the United States ask the president of El Salvador to return the man wrongly sent to a maximum security prison in his country,” Schiff said. “It just never happens.”
Schiff said the president, through his actions, had “taken a very determined step toward dictatorship.”
Chemerinsky agreed that the days of wondering whether the U.S. is in a constitutional crisis were over.
He said the U.S. is “clearly in a constitutional crisis” both because of the “quantity of unconstitutional things that have been done” by the Trump administration that show Trump “has no respect for constitutional law,” and because of the extreme actions and recalcitrance of the administration in the Abrego Garcia case in particular.
“It could get worse, but that doesn’t minimize that we’re in one now,” he said.
Chemerinsky said it was clearly illegal under U.S. law for the administration to defy a court order and send a person to a notorious El Salvador prison without due process. And the administration’s claim now that it cannot bring Abrego Garcia back to the U.S. because he is under the control of a foreign government simply “has to be wrong” in a land of laws, he said.
“It’s nothing less than a claim of the power to put any human being in a foreign prison,” he said. “That’s the authority to create a gulag.”
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