Trump and the judges: a constitutional test
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Last weekend, three planes carrying hundreds of migrants landed in El Salvador. The migrants were bound for a notorious prison. Are you planning to do more deportations? I can tell you this: these were bad people. That was a bad group of, as I say, hombres. Trump says many of these migrants were members of a Venezuelan gang bent on invading the United States.

But a federal judge demanded the flights back to the U.S. until it could be clear these individuals had received due process. And we are wholly confident that we are going to win this case in court. And after Trump suggested the judge be impeached, we saw a rare moment where the Chief Justice of the Supreme Court publicly rebuked the president. This weekend on a special episode of Reuters World News, we examine the legal arguments, how they're testing the courts.

and where the executive and judicial branches of the U.S. government go from here. I'm your host, Christopher Waljasper, in Chicago. With the Venmo debit card, you can turn the spa day that your friends paid you back for into concert tickets that you can earn up to 5% cash back on.

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To help navigate this conflict, I'm joined today by two of our legal reporters. Tom Howells has been covering the courts for 15 years and has had an especially busy week covering the recent deportations by the Trump administration.

So, Tom, how are you feeling after this week? It's been a busy week. Certainly. And Jack Queen covers the courts out of New York and has been tracking a number of the legal challenges to Trump's initiatives. Jack, you covered Trump's first term. How would you say the last few months have compared?

So,

I want to dig into this most recent issue here. Why are we talking about this event, deportation, as a threat to the U.S. system of government? Why now, when there's all these other cases where judges have ruled against Trump's efforts? I think it starts with the way this came about. Trump cited a 1798 law that's only been invoked three times before. That's the Alien Enemies Act.

It was most famously used to justify the internment of Japanese, including citizens, during World War II. And by citing that, he's reaching into a wartime law. He's justifying it, saying the country's been invaded by this Venezuelan gang. And that law, the Supreme Court, I forget the exact wording, but they described it as like the most sweeping powers the legislature has ever endowed upon the executive branch or something like that. So it's an extremely powerful law.

It denies due process essentially to the people they decide to deport under this law. And that kicks off this whole chain of events where authorities have picked up these supposed Venezuelan gang members, put them into detention and sent them not to Venezuela, but to El Salvador in prison, one of the most notorious prisons, probably in the Western hemisphere. We don't know who the people are, but there was a court order issued.

blocking the use of the Alien Enemies Act to deport people until there's a chance to review that law and review the circumstances under which it was invoked. But it doesn't quite end there because after the lawsuit was filed, the judge issued an order blocking the use of it. And then there's a question of if the Trump administration continued to deport people using the law in violation of the corridor. So that's sort of how we got to this point.

Yeah. And I think another thing that differentiates this case is that it's really started to reach kind of a higher octave of defiance or near defiance. So, for instance, in some of its court filings now, the Trump administration is really using these sharp terms to kind of attack

the judge for even intervening in this case at all, challenging his jurisdiction to question the administration. I think they recently said that this is devolved into some picayune inquiry by a judge who has no right to even be questioning the administration on these points. You know, and we also had reporting that these flights were in the air and the judge had said at a hearing, if these planes are in the air, they need to turn around.

And there was reporting that Trump's cabinet officials basically decided, okay, well, since the planes are over international waters, we don't have to obey the judge on that. And of course, legal experts tell us that that's not the case, that they still will require to obey the judge.

And then, of course, Trump has been for a while attacking judges who rule against him, saying that they're radical leftists and so on. There's no indication that the judge in this case, Judge Boasberg, is a radical leftist. And then that actually prompted a rare public statement from Supreme Court Chief Justice John Roberts, who was saying it's not appropriate to be calling for impeachments of judges the way that Trump has been. It strikes me that when we look at the particulars of the

the back and forth between the judge and the Trump administration this last week, there was a lot of...

technical and legal acrobatics that that took place right about when the planes took off and did the the judge's verbal orders versus his written orders actually apply. What is the court's reaction to some of these maneuvers that we've seen from the Trump administration to justify what some are calling a defiance of the judge's orders?

I think that's part of the problem everybody's struggling with is the administrations say they're not defining the orders. They say this tradition of a written order overriding an oral spoken order, and I guess they were worded differently. Yeah.

And that, you know, there's this dispute over where the plane was, whether it was in U.S. airspace or not. And they've raised this idea of whether they would be disclosing classified information by updating the judge. And I don't think the judge wants to come down too hard and sort of test these limits. And instead, he's giving them more time, giving them more room to explain themselves.

Yeah, I would definitely agree with Tom on that point, that I think what we're seeing is judges being a little cautious, maybe because they're cognizant of the fact that the Trump administration is kind of raring for a fight on these issues and is really ready to go after judges. So I think they're being fairly accommodating and in some cases really giving the government the benefit of the doubt. But I think that you do see...

frustration kind of bubbling up every now and then, even if it's a bit subdued frustration. And this deportation case isn't the only time we've seen the administration and the judiciary at odds, right? You know, so none quite as intense as the deportation case. But yes, there have been instances of, I mean, since basically the very beginning of the Trump administration really testing the boundaries of compliance, you know, one that immediately comes to mind was

Recently, there were rulings reinstating thousands of fired federal workers. And in response to one of those orders, the Trump administration brought those workers back, but placed them on administrative leave. And so the judge in one of those cases was saying, well, wait a minute, if you're putting them on administrative leave, then all of the problems are still there with potentially preventing these federal programs from functioning. So that was, I think, a judge getting frustrated with the Trump administration technically

complying, but not really complying with the spirit of the order. There's been others too, like one of the spending freeze cases went back and forth, the judge frustrated by how long it's taken the administration to restart foreign aid payments to contractors. And there's been deadlines set. The administration continues to miss those deadlines. And they say it's because the foreign aid program is so full of complicated, outdated software and stuff like that.

So finally, the judge just decided, well, why don't you just give me a deadline of when you can meet these payments and we'll sort of take it from there. So I wonder, are these cases an attempt by the Trump administration to

to try and remold the way our laws are constructed? I don't think there's much question about that, especially when you look at, so Trump issued an executive order saying he had authority over various independent agencies. And these are agencies that Congress created, and they're meant to be a couple steps away from the presidential power by having people on there with staggered terms.

And he's just come right in and like with the NLRB, the one that oversees labor relations, fired the chairwoman of that. That case will go to the Supreme Court, I presume, if both sides keep fighting it. And the question will be, you know, whether these independent agencies are even constitutional. Now, it strikes me also that we have been kind of digging into the nuance of the fight over this deportation case. But how is that case being viewed in the court of public opinion?

That's a tough one. Not a lot of people probably want to jump on the side of violent Venezuelan gang members, but it's not clear that all of them are Venezuelan gang members. I suppose that's not a bad place for the administration to fight over because they're not a sympathetic plaintiff.

But again, we have no idea if these people are actual Venezuelan gang members or if they're just some poor, incredibly unlucky person that got picked up. What happens is they have a lot of unfortunate tattoos. And the only way to sort that out would be through due process. None of them got due process.

as far as we know. And so, you know, that just raises a lot of uncomfortable questions about who the United States sent to El Salvador. Yeah. And, you know, as Tom mentioned earlier, this law, the Alien Enemies Act is very powerful. And so these people were not entitled to hearings or anything like that. You know, for the most part, it's important to note that even non-U.S. citizens residing in the U.S. for the most part enjoy constitutional rights and rights to things like due process.

And this act allows the president to basically suspend those protections. I think it's no question that they selected this target carefully to bring this kind of trial balloon because you see headlines and conservative outlets referring to them as Venezuelan gangbangers and stuff. I'll offer a very unscientific metric, which is that my inbox has seen some

messages from readers who espouse that position, that these are just violent Venezuelan gang members and why do we care about them and shouldn't they just be sent away? I think, you know, back to the point about defiance of court orders, you had Tom Homan, Trump's immigration enforcement czar, saying,

We don't care what the judges say. The flights will continue, which is pretty remarkable and I think indicates the confidence they have in the public opinion being on their side with this one because the optics potentially of a judge saying, well, hold up, bring these people back is not great, especially if you're an immigration skeptic.

Now, we have heard a lot of folks talk about the fact that these clashes could represent a larger threat to our checks and balances system. Right. We've heard the phrase constitutional crisis bandied about. Now, that's not an everyday kitchen table term.

What are the bigger implications for these fights for the broader swaths of America? Yeah, I feel like, Jack, feel free to disagree with me. I feel like all this talk of constitutional crisis, like we're not even close yet, I don't think. I feel like when there's a circuit court or a Supreme Court ruling or something like that, yeah, okay. But when we get to a constitutional crisis, it'll be where the Trump administration acknowledges they could obey a court order and they're not, which

which hasn't happened yet. Trump administration keeps saying, you know, we missed a deadline because the payment systems didn't work or the flight took off before your order. So they're sort of saying they're complying with stuff. As rough as the language has been in public about impeaching and all that stuff, in court papers, they still seem to be

talking about compliance. It'll be interesting if we get to the point where there's orders appealed, it gets to the Supreme Court, and then there isn't compliance. Then you have a full-blown crisis on your hands. Yeah. I think I'm with you in some respects, in part because I think a problem that they might encounter is that

At the end of the day, they might not be able to get line attorneys at the Department of Justice to go along with defying court orders because they could face serious professional consequences as individuals. Especially the career people who aren't necessarily ideologically aligned with him on these things. These are people who don't want to be...

sanctioned by courts held in contempt. So that could be a major issue potentially. Where I might disagree with you a little bit is that these things can happen very suddenly, right? I mean, it can be just all of a sudden the flashpoint can arise and all it takes, I mean, I think that you could see something like this develop in the course of a day or two if Trump really decides he wants to go to the mat on something. And I think, you know, as we were saying,

That probably wouldn't happen over things like preliminary injunctions or temporary restraining orders like we've seen so far. So in that sense, I would agree with you. It would need to be something more final and something where the administration has exhausted its appeals.

Yeah. You know, he has a history. He's really comfortable with litigation. His whole career has been involved in lawsuits. So he knows the courts really well. I don't think he seems particularly bothered by, he's not intimidated at all by the court system. That's for sure. Yeah. I think, and throughout his history of litigation, he has been very good at what his opponents in these cases would describe as maneuvering sort of right within the bounds of court rulings and things like that. You know, another interesting point is that like, so Trump is,

chosen. His administration seems to be dragging their feet on humanitarian aid, these deportation cases. Those are foreign...

cases where the courts are really deferential to the president. Stuff that's purely domestic, we might not see such interest in the administration to challenge court orders. I think it's important to note too that Trump said just earlier this week that he plans to comply with all these court orders. Again, I think part of that is because he expects to win at the Supreme Court. But I think that's another interesting point to consider, which is that, you know,

Is the administration really ready to start defying court orders and really tear at the legitimacy of the judiciary if ultimately they plan on relying on the Supreme Court to sign off on their policies? So you could see a situation where that could maybe get them into trouble if they if they go too hard on defying court orders and so forth.

Now, when asked if it was part of Trump's strategy to use legal disputes to test presidential powers, even up to the Supreme Court, a White House spokesperson said, quote, "...the Trump administration is committed to delivering on President Trump's mandate to mass deport criminal illegal migrants, enforce our immigration laws, and secure our borders."

Jack, you mentioned earlier John Roberts's rebuke of Trump after the president said that the judge who ordered the halt of these deportations should be impeached. Does that give us any insight into how the Supreme Court might rule in any of these cases?

if and when they eventually make it to the high court? I think it gives us some insights into what John Roberts thinks, because, you know, he's quite an institutionalist and throughout his career, especially as chief justice, he's done a lot to preserve the good image and the integrity of the Supreme Court and so on. He didn't mention Trump by name in that statement, which, of course, Trump was eager to highlight. So it was a bit of a muted response in that regard.

As far as reading the tea leaves on that as to how the Supreme Court might rule on the merits of some of these cases, you know, again, that's just Roberts. And I think Trump has some pocket aces on the Supreme Court. He nominated several of them, and there's a conservative majority on that court. So he does seem to have some advantages potentially going into these Supreme Court cases. So I guess what were to happen if the Trump administration, we get to a point where they are clearly not...

complying with a lower judge's orders? Like what then cascades from there? Well, the central problem and why people are concerned about a constitutional crisis is that under our system, judges do not have an independent means of enforcing their orders, really. I mean, they have U.S. marshals who can bring people into court, but that's not really the same thing as having your own uniformed police officers who can go arrest people who are defying court orders. And

There are things that courts can do, like imposing civil penalties and so forth and holding government officials in contempt and things like that. But again, it's unclear how much of a deterrent that might ultimately be. But the courts can't hold a sitting president in contempt.

Can they do that for lower administration officials? Yes, they can hold officials in contempt and issue writs of mandamus, which are basically things that court order is compelling them to take certain actions. They can also order people below the recalcitrant official to step in and do their job for them, essentially. But again, a lot of that rests on norms and people's willingness to comply with court orders. So...

Have we ever been at a point like this in U.S. history? One branch of government threatening to undermine another. I'm going back to my days of watching Schoolhouse Rock. The three branches of government are supposed to have this system of checks and balances. But is that still working? Yeah, I think Schoolhouse Rock really needs to do an update for the Trump administration because

because we've gotten into some new territory here. You know, there's the nullification crisis comes to mind, which was sort of a precursor to the Civil War, where you had states basically refusing to comply with certain federal laws that they didn't like. And so that one certainly comes to mind. It's kind of a grim one. Tom, what do you think? I mean, there was, again, Civil War. Apparently, Abraham Lincoln refused to release somebody who was never charged from prison.

defying a court order. I did some reporting about this week and there was a secretary of commerce at one point in 1950. Somehow the secretary of commerce ended up owning stock at a company and refused to return it to the investors. And the district judge ordered him jailed in five days if he didn't return it. But on the third day or fourth day of that deadline approach, the Supreme Court stepped in and stayed the whole thing. And there was another situation that

Under Secretary of Agriculture, the district judge in Montana gave them a choice, comply with the court order or decide between getting sent to jail or wearing an ankle monitor under house arrest, which is going to be. So they got compliance. So from the people I talked to, that's about it. There are not many examples of this sort of thing.

where a judge is threatening to put somebody in jail. And partially because what happens if they don't, what if the system really starts to break down? You threaten something harsh like that and the other side just doesn't blink. And then what do you do? You mentioned the US Marshals, but they report to the Attorney General who is under the Trump administration.

If the Trump administration is going to disobey court orders, you could imagine them also directing the U.S. Marshals not to follow orders. So, you know, kind of what do you do at that point? This is why I don't this is why I you know, there's a history of when these issues come up, everybody kind of backs down because nobody really wants to push things too far.

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A big thanks to Tom, Jack, and our entire legal team, as well as our White House team for their coverage of all these issues. Please go check out all of their tireless reporting on Reuters.com. If you want to read more about the tensions between President Trump and Chief Justice Roberts, there's a great story about the complicated history between the two men on Reuters.com. We'll have a link to the story in the show notes.

The Reuters World News team includes Kim Van Nel, Sharon Reichgarson, Jonah Green, David Spencer, Gail Issa, Alex Sommer, and me, Christopher Waljasper. Our senior producers are Tara Oakes and Carmel Crimmins. Lila de Kretzer is our executive producer. Engineering, sound design, and music composition by Josh Sommer. We'll be back on Monday with our daily headline show.

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