Trump Defying Court Orders Is ‘Stress Test’ for the Judiciary

The Trump administration is defying court orders and there isn’t much the Supreme Court can do to stop it.

A Maryland man wrongly deported to El Salvador has yet to be brought back to the US despite a ruling from the justices last week ordering the government to “facilitate” his return. And on Tuesday, the White House eliminated traditional press pool access for newswires after a federal district court judge said the administration can’t discriminate against the Associated Press for refusing to update its style for the “Gulf of Mexico” to Trump’s “Gulf of America.”

Trump’s willingness to skirt court orders illustrates just how little power the federal judiciary has to enforce its decisions, even those from the nation’s highest court, legal scholars said.

“The American people are about to learn the limits of what the Supreme Court can do,” said Michael Gerhardt, a University of North Carolina law professor who served as special counsel to the Senate Judiciary Committee for several Supreme Court confirmations. “This is going to be a sobering lesson.”

Coercive Tool

While lower court judges have taken some steps to try and coerce the government into compliance, legal scholars said they haven’t yet tried to enforce their rulings.

US District Court Judge Paula Xinis in Maryland on Tuesday ordered depositions to build a record on what the government has done to bring Kilmar Abrego Garcia back from El Salvador. A day later, US District Court Judge James Boasberg in D.C. said he has enough evidence to hold Trump officials in criminal contempt for continuing to deport alleged Venezuelan gang members to an El Salvador prison despite his verbal order to turn the planes around.

Boasberg is the only judge who’s indicated he’s moving to the penalty phase, said Leah Litman, University of Michigan Law professor and author of the forthcoming book “LAWLESS: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”

“Judge Xinis thus far has just tried to badger the Trump administration into complying,” she said.

Contempt of court is a coercive tool trial courts still have.

It’s a more formal recognition that the government isn’t complying and it comes with penalties both civil and criminal, said David Janovsky, senior policy analyst at the Project on Government Oversight, a nonpartisan government watchdog that’s focused on preventing waste, fraud, and abuse of power.

Those penalties can be fines or the jailing of government officials, but Janovsky acknowledged it’s the US Marshals Service that’s responsible for enforcing contempt orders and that’s an arm of the Justice Department.

It seems particularly unlikely that Attorney General Pam Bondi, who has aligned the Justice Department closely with the White House, would deploy marshals to jail Trump administration officials.

“There is a split loyalty there that could be quite concerning,” Janovsky said.

In a legal sidebar that was updated on March 6, the Congressional Research Service said federal appellate courts also have the power to hold in contempt those who violate or undermine their orders. The one time the Supreme court directly punished contempt was in the context of a 1906 lynching of a Black man in Tennessee while his appeal was pending before the court, Georgetown Law professor Steve Vladeck said in his weekly newsletter, “One First.”

One thing the Supreme Court can do, Litman said, is acknowledge and grapple with the fact that the administration has been, and continues to be, acting in bad faith with respect to court orders.

“They need to send stronger signals that they are not buying what the Trump administration is selling and that they know what’s going on,” she said.

Narrow Readings

Trump supporters say the administration isn’t disobeying court orders. It’s just reading them narrowly.

In the AP case, Judge Trevor McFadden said the outlet “cannot be treated worse than its peer wire services,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation.

“As long as the AP isn’t excluded from being in that rotation with Reuters, with other press reporters, they are in full compliance with the court order,” von Spakovsky said. The US Court of Appeals for the D.C. Circuit will hold a hearing Thursday on the administration’s appeal of the district court’s ruling for the AP.

In the case of the Maryland man who was wrongly deported, he noted the Supreme Court said the lower court should clarify what it meant when it ordered the government to “effectuate” Garcia’s return and do it “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

“What that simply means the government was being told it should try to see if El Salvador would return Garcia to effectuate his return,” von Spakovsky said. “The president of El Salvador has publicly said ‘I’m not returning this guy.’”

Salvadoran President Nayib Bukele said in a April 14 meeting with Trump that he doesn’t have the power to return Garcia to the US. Since the

Trump administration maintains the position that US courts don’t have authority over foreign policy, the executive and judiciary are in a standoff.

“We are certainly seeing, if not an unprecedented, then a very rare stress test of what the law means in the face of an administration that seemingly just doesn’t care,” Janovsky said.

Courts have limited options to enforce their rulings and though Congress is designed to be a final bulwark, many legal scholars don’t see impeachment as a viable option with Republicans in control of both chambers.

“So far, we have not seen Congress as a body showing much interest in doing much at all to stand up to the administration’s abuses,” Janovsky said. “All that can be done is for members to eventually regain their sense of duty. If none of that happens, I really don’t know what happens next.”