On Saturday, the US government put hundreds of Venezuelans on planes which swiftly took off for the accused gang members’ ultimate destination: an El Salvadorean mega-prison.
A judge then ordered the planes back, telling the government’s lawyers verbally that they should do so “however that’s accomplished — whether turning around the plane or not.”
But the court order was never heeded, the planes stayed the course.
“Oopsie…too late,” El Salvador’s president, Nayib Bukele, posted on X after the deportees landed in his country. He included an emoji crying with laughter. The post was reshared by the White House’s director of communications, Steven Cheung.
Little information has been provided about the identities of those detained, but a large number were Venezuelan and the Trump administration alleges the deportees – apparently rounded up at the weekend – are all members of Tren de Aragua, a notorious transnational criminal gang. Attorneys for some of the deportees refute that claim and human rights groups have raised concerns about the lack of due process.
This incident has ignited fears that the White House is willing to openly defy a federal court order, setting it on a potential collision course with America’s judicial branch.
In America’s system of government checks and balances, federal courts in the judicial branch have the responsibility of reviewing actions by the president and the government agencies in the executive branch tasked with enacting laws passed by Congress. An order issued by a judge is binding – and noncompliance can result in civil and criminal sanctions.
It very rarely gets that far, however, as involved parties traditionally defer to a judge’s ruling.
White House officials said it did not purposely ignore a court ruling. They argued, in part, that because Judge James Boasberg’s order was made orally rather than in written form, it was not enforceable – and that the planes had already left the US by the time it was issued.
Legal scholars have kept a close eye on the White House’s reaction to judges across the country who have paused or blocked its actions, including the mass firings of federal employees and broad freezing of federal funds. Several of Donald Trump’s early moves in his second term indicate a willingness to test the limits of presidential power, and constitutional scholars have watched for signs the president will openly defy the nation’s courts.
“The Trump administration is pushing the bounds of executive authority, especially on immigration issues,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School.
“When the executive branch wilfully disregards clear and specific court orders, as the administration did with the [Venezuelan] deportation flights, the checks-and-balances system established by the U.S. Constitution is at risk, and our constitutional democracy is threatened,” she said.
The federal judge involved in Saturday’s ruling – Judge Boasberg – made his order after five Venezuelans in federal custody filed a lawsuit challenging their removal under an 18th century law that has not been used since World War Two. The Alien Enemies Act of 1798 allows the president sweeping powers to order the detention and deportation of natives or citizens of an “enemy” nation without following the usual processes.
According to US officials, more than 130 of those on the Venezuelan deportation flights were also expelled under that law, a move seemingly crafted to move quickly and evade immediate judicial review.
Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant’s Rights Project, told the BBC this weekend that he believed the Trump administration had improperly invoked the 1798 act.
“The other dangerous part of this is that the government is saying the federal courts have no role in this, that the federal courts in the United States can’t review what President Trump has done,” he added. “That’s a very, very dangerous argument.”
At a Monday hearing, Judge Boasberg demanded answers about the timing of the flights in relation to his order that the planes return to the US. Trump administration officials asserted that they respected court orders and followed the law, arguing that “an oral directive is not enforceable as an injunction”. The judge ordered further details about the flights by noon Tuesday and another hearing Friday.
There is also growing frustration within the White House, and among conservatives in general, over what they view as lower-level judges overstepping their authority in delaying or suspending the implementation of the president’s executive orders. A ruling by a federal judge in one state can put an immediate hold on a policy being implemented across the country.
“It’s a judge that’s putting himself in the position of the president of the United States, who was elected by close to 80 million votes,” Trump said on Sunday in response to a federal judge’s order to suspend his firing of thousands of federal workers. “That’s a very dangerous thing for our country. And I would suspect that we’re going to have to get a decision from the Supreme Court.”
The nine-member US Supreme Court, with its conservative majority, including three justices appointed by Trump in his first term, could be poised as the ultimate arbiter of this growing number of legal battles.
Last week, the Trump administration asked the high court to step in and overturn a lower court’s suspension of an order revoking automatic citizenship for the children of undocumented migrants born on US soil. That request is still pending.
Trump’s efforts to downsize the federal workforce, shutter federal agencies, suspend refugee admissions and asylum claims, and freeze government loans and grants are all working their way through the US court system at varying speed. Each has its own distinct legal issues, but all also involve the ability of judges to delay, and scrutinise, presidential action.
With the Venezuelan deportees already in El Salvador, Judge Boasberg may have limited ability to address their fate – but he could attempt to sanction Trump administration officials if he determines they defied his order.
That may be a legal fight Trump is happy to wage, confident that the political benefit of being seen removing what he argues are dangerous criminal gang members will outweigh any legal setbacks along the way.
“A single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil”, White House Press Secretary Karoline Leavitt said on Monday in response to the furore.
Previous presidents, both Democratic and Republican, have frequently complained of being hampered by low-level judges that issue sweeping rulings undermining their policy-making efforts. Some have questioned their authority to do so. In the months ahead, Trump may be the one who pushes this conflict to a more definitive resolution.
