From Evasion to Defiance

On June 2, 1919, bombs went off in eight cities across the country. One blew the door off the house of the country’s attorney general, A. Mitchell Palmer, in Georgetown. The government’s response was to round up thousands of foreign nationals, not on charges that they were involved in the bombings but for technical immigration violations and association with communist or anarchist organizations. Writing about the dragnet, Louis Post, who as Acting Secretary of Labor overturned more than a thousand deportation orders arising from the raids, observed that “the force of the delirium turned in the direction of a deportations crusade with the spontaneity of water flowing along the course of least resistance.”

Throughout our history, as I noted in these pages in the early months of Donald Trump’s first term, politicians have found scapegoating noncitizens to be “the course of least resistance.” Noncitizens don’t vote, and citizens rarely object too loudly to derogations of foreigners’ rights. No one has deployed this tactic more aggressively than Trump, who won two unlikely presidential bids by labeling immigrants “criminals” and “rapists.” From the Muslim ban he imposed in his first term to his deployment of the Alien Enemies Act in his second, the president has used broad-brush measures intended only for emergencies to single out noncitizens, not in response to any actual emergency and not for any individual wrongdoing but for mere association with a disfavored country or group. The Alien Enemies Act of 1798 applies only when the US is in a declared war or subject to an “invasion or predatory incursion” by a foreign nation, neither of which is the case here. Trump has nonetheless claimed that the Act permits him to deport suspected members of a Venezuelan gang, Tren de Aragua, as “alien enemies” without any process whatever.

But this time the tactic may be backfiring. In the past several weeks Trump has faced substantial resistance from the courts. Federal judges, some of whom Trump himself appointed, have barred his invocation of the Alien Enemies Act and ordered him to facilitate the return of a Salvadoran wrongly deported. So far Trump has not taken the resistance kindly. He flew more than a hundred Venezuelans out of the country without any process even as a federal court was conducting an emergency hearing challenging his authority to do so. Even though his administration admitted that it erroneously deported a citizen of El Salvador, Kilmar Abrego Garcia, to that country’s notorious megaprison, Trump has so far balked at making any genuine effort to get him back, despite having been ordered to do so by every judge who has considered the matter: a federal district court, a unanimous court of appeals, and a unanimous Supreme Court. 

In his second term Trump has not only sought to exploit “the course of least resistance” as a political matter, by targeting vulnerable individuals who lack widespread popular support. He has also attempted to sidestep or eliminate the legal obstacles the system poses to his desired ends. Speaking in the Oval Office last week, he boasted, “We’re getting them out, and a judge can’t say, ‘No, you have to have a trial.’ The trial is going to take two years. We’re going to have a very dangerous country if we’re not allowed to do what we’re entitled to do.” Or, as White House deputy chief of staff Stephen Miller put it on social media, “Friendly reminder: If you illegally invaded our country the only ‘process’ you are entitled to is deportation.” 

What happens when the course of least resistance meets judicial opposition? The executive has three possible responses: compliance, evasion, or outright defiance. Only the first is lawful. But there is an important difference between evasion and defiance. It is one thing to shoplift surreptitiously and another to walk into a store and openly take its merchandise, brazenly asserting that no law can stop you. Evasion acknowledges that the law exists and seeks to elude capture; defiance simply denies the force of law altogether. Thus far, despite loose rhetoric outside court, Trump has stopped short of asserting in court that he has the authority to defy a judicial order. But evasion and defiance are on a continuum. Trump’s administration has already engaged in shockingly irresponsible conduct designed to evade court rulings, and he is coming closer and closer to the constitutional redline of defying them outright. 

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To see what evasion looks like, one need only read Judge James Boasberg’s April 16 opinion in the first of several cases challenging the expulsion of Venezuelans under the Alien Enemies Act. With scrupulous, one might even say judicious care, the decision lays out a tale of remarkably reckless bad faith. 

The effort to avoid court review began even before any lawsuit was filed. On March 14 Trump signed an unprecedented proclamation invoking the Act, claiming, against all evidence, that the United States had been invaded by a criminal gang, Tren de Aragua, that few Americans had even heard of before he pronounced them “enemies.” Because the Alien Enemies Act applies only during wartime, it cannot conceivably justify Trump’s actions against Tren de Aragua, which is neither a foreign nation nor has invaded us. 

Having signed the proclamation in secret, Trump made it public the next day, but only after undertaking major steps to remove a large group of Venezuelan immigrants. As Judge Boasberg explained, the government “reportedly loaded scores of Venezuelans onto buses, drove them to a nearby airport, and began putting them onto three planes.” But the ACLU got wind of the effort through lawyers for some of the Venezuelans. It filed suit at 1:12 AM on March 15, seeking a temporary restraining order against the removals. At 9:40 AM, Judge Boasberg entered an order barring removal of the ACLU’s five clients. Concerned that many others were in the same situation, the ACLU then asked for an emergency hearing that day so that it could extend the relief to a class of similarly situated Venezuelans.

The government objected that an emergency hearing would be premature and unnecessary, and asked that it be put off until Monday—even as it was preparing to fly Venezuelans out of the country that very day. As Judge Boasberg wrote, “The government notably did not respond to Plaintiffs’ pointed question about whether it was ‘prepare[d] to halt removals pursuant to the Act’ in the interim.” At an emergency hearing at 5:00 PM that Saturday, Judge Boasberg asked whether any removals were planned “in the next twenty-four or forty-eight hours,” to which counsel for the government replied only that he would “investigate” and “report back.” At 5:22, Boasberg adjourned court until 6:00 PM so that the government’s lawyer could ascertain whether any removals were indeed planned. 

By the time court resumed, however, two planes carrying more than a hundred people had taken off, one at 5:25, the other at 5:45—facts publicly known because of a three-minute video of the flights that the president of El Salvador, Nayib Bukele, posted online, and that both Trump and Secretary of State Marco Rubio reposted. Yet the government’s lawyer refused to say even whether any removals were underway, claiming that revealing “operational details” might endanger national security. 

At 6:45, after hearing argument on the merits, Judge Boasberg directed government counsel to inform his clients that if anyone was on a plane pursuant to the Alien Enemies Act, they should be returned to the United States—either by turning the planes around or by not disembarking when they landed and then bringing them back. At 7:25 PM, thirty minutes after the hearing concluded, he memorialized that order in writing, prohibiting any effort to remove persons under the Alien Enemies Act. 

At that point the US retained custody of everyone subject to the court’s order. The planes landed in Honduras for a layover shortly after the written order was issued and reached El Salvador several hours later. Only then did the US transfer custody of the men to El Salvador, hours after the judge forbade their removal and ordered their return. The administration did return several Venezuelan women who had been on the planes, but only because the maximum-security prison to which the deportees were headed is for men only. 

Judge Boasberg subsequently held a series of hearings to determine whether the administration had intentionally or knowingly flouted his order. The government’s lawyers consistently refused to provide any details. At one point they went so far as to assert that such details were “state secrets” even though they were by then publicly known, in large part because of the video that the president and secretary of state had themselves reposted. On these facts, Judge Boasberg found “probable cause” that the government violated his order. He has given it an opportunity to “purge” the contempt by, for example, returning the Venezuelans and affording them fair hearings. But absent any such correction, he intends to refer the matter for prosecution for “criminal contempt.” 

On the continuum from evasion to defiance, the administration’s conduct here comes very close to the latter. So far, however, the government has not asserted that it has the authority to violate the court’s order. Instead it advances what Judge Boasberg rightly calls “unconvincing” and “hyper-technical” arguments that the Venezuelans had already been “removed” before he issued his order, because the “removal” occurred when the plaintiffs left American airspace, not when they were handed over to the Salvadoran regime. Judge Boasberg rejected those arguments, noting, among other things, that all the plaintiffs remained on the planes in US custody until hours after the order was issued and that, as the return of the Venezuelan women illustrates, the administration had full authority to bring them all back, had it chosen to follow his order. The government has appealed. 

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The second case of transparently bad-faith evasion involves Abrego Garcia. A Salvadoran who has lived here since 2011, the father of three US citizen children, Abrego Garcia could not lawfully be sent to El Salvador because he had been granted “withholding of removal,” a form of relief available only where there is a strong showing that an individual would face persecution in his home country. But in the same roundup on March 15 the government removed him to El Salvador all the same—without any judicial process, and admittedly in error. 

This should be an easy case. When one makes a mistake, the proper course is to rectify it. The US clearly has the power to do so here: it is paying El Salvador millions of dollars to detain Abrego Garcia, the Venezuelans, and others; if it asked Bukele to return Abrego Garcia, he would. When Abrego Garcia and his US citizen wife and children sued, a federal judge in Maryland, Paula Xinis, promptly ordered the government to “facilitate and effectuate” his return. What could be simpler?

But being Donald Trump apparently means never being able to say you’re sorry. The administration now contends that it did not make a mistake, even though it obviously did. It appealed all the way to the Supreme Court, which on April 10 largely affirmed Judge Xinis’s order. The justices did modify the order in one respect, suggesting that requiring the administration to “effectuate” Abrego Garcia’s return might overstep the court’s authority, presumably because, now that El Salvador has its own sovereign authority over him, neither a federal court nor the United States can make his return happen unilaterally. But the Supreme Court unanimously ordered the administration to “facilitate” his return, a verb that acknowledges the complication of Salvadoran authority but orders the government to take all affirmative steps that it can.

The government initially did exactly nothing to comply, despite valiant efforts by Judge Xinis. But here too, rather than asserting the authority to defy the order outright, the administration maintained that it had done no such thing: to “facilitate” Abrego Garcia’s return, it argues, it need only commit to not barring his entry if El Salvador independently chooses to allow him to return. On April 14 Trump and Rubio sat silently by in an Oval Office meeting as Bukele replied to a reporter’s question that he would never return Abrego Garcia because he was a “terrorist.” (No such charge has been made, nor any such evidence advanced.) After multiple rebukes from the courts, the administration reportedly sent a diplomatic note to El Salvador requesting Abrego Garcia’s return; Bukele allegedly declined. Yet it seems the note was sent with a wink and a nod. On Tuesday Trump told a White House reporter, Terence Moran, that he could get Abrego Garcia back by calling Bukele, “and if he were the gentleman that you say he is, I would do that. But he is not.” But of course the courts did not order the president to facilitate Abrego Garcia’s return only if Trump thinks he’s a “gentleman.” 

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The administration’s tactics are only prompting the courts to take more aggressive steps. On Friday, April 18, the ACLU learned of another effort to transport a planeload of Venezuelans from Texas under the Alien Enemies Act. It sought emergency relief that day from a Texas federal district court, the US Court of Appeals for the Fifth Circuit, and the Supreme Court, warning that its clients “are in imminent and ongoing jeopardy of being removed from the United States without notice or an opportunity to be heard.”

Both lower courts denied the request, but shortly after 1:00 AM Saturday morning, before even getting a response from the government, the Supreme Court issued an emergency order directing the administration “not to remove any member of the putative class of detainees from the United States until further order of this Court.” Only Justices Thomas and Alito dissented. The fact that the Court acted so swiftly and decisively is a sign that the administration has squandered much of its credibility with the judiciary. After seeing what happened to the Venezuelans before Judge Boasberg and to Abrego Garcia, the Supreme Court was evidently not willing to risk letting the administration sneak people out of the country even as the legal basis for doing so was being challenged in court. 

Lower courts are also losing patience. When the administration appealed Judge Xinis’s order compelling it to take concrete steps to facilitate Abrego Garcia’s return, the US Court of Appeals for the Fourth Circuit unanimously denied the request, in a strongly worded decision written by Judge J. Harvie Wilkinson, one of the country’s most highly respected (and Republican-appointed) judges. “It is difficult in some cases to get to the very heart of the matter,” he wrote.

But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. 

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

On April 23 another federal judge in Maryland, this one appointed by Trump, ordered the administration to facilitate the return of yet another man who was illegally removed. The individual, identified only as “Cristian” because of concerns about retaliation if his identity were made public, was removed to El Salvador despite being subject to a court order that barred his removal until immigration courts adjudicate his pending request for asylum. Expressly pointing to the government’s failure to take any actions in Abrego Garcia’s case, the judge specified that the order to “facilitate” Cristian’s return “includes, but is not limited to, Defendants making a good faith request to the government of El Salvador to release Cristian to U.S. custody, for transport back to the United States to await the adjudication of his asylum application.”

These decisions suggest that the courts are taking note of Trump’s tactics and don’t like what they see. Nor, for that matter, do significant portions of the public. A recent poll found that 85 percent of Americans believe that Trump should abide by court orders. Another poll found that, by a 53 percent to 21 percent margin, Americans think Trump should comply with the order to facilitate Abrego Garcia’s return. Still others report that Americans oppose his misuse of the Alien Enemies Act, as well as his efforts to deport students for engaging in pro-Palestinian protests.

As the judges’ responses in these cases illustrate, the administration’s evasive tactics pose a threat that far exceeds the result in any particular lawsuit. For courts to function, all parties must agree on a fundamental premise: that the losers will abide by the court’s decision, like it or not. More broadly, for the United States to remain a constitutional democracy, the executive must honor the courts when they decide that its actions are unconstitutional. As the administration’s course of least resistance has met significant resistance from the judiciary, Trump has principally responded with bad-faith evasion. But the courts are not letting him get away with it. A decision to openly flout their authority would meet with wide disapproval and come at grave cost to the administration and the Republican Party. The question is whether Trump cares.