Bizarrely, we now seem to have a standoff between the Trump administration and the US Supreme Court and lower federal courts. As wildly, it’s over a situation where the administration admits that they made a mistake, but still seems to be trying to draw a crazy line in the sand and not make it right. What’s building up as a constitutional crisis is all about the deportation of one man, Abrego Garcia, who was deported based on the administration’s unprovable claim that he was a member of a gang. Nonetheless, they sent him to a prison in El Salvador, and, so far, are continuing to refuse to return him despite the US Supreme Court decision that they need to do so.
The backstory on Garcia seems straightforward. He’s been in the Maryland for the last dozen years. He’s married and working in construction. They are raising three children with disabilities. He has never been arrested in the US, and there is no record of illegal activity here or abroad. Yet, somehow, he ended up on the night flight to the notorious prisons in El Salvador.
The case ended up with a federal judge in Maryland where his family had filed for his return. With the Justice Department conceding its error and the lack of any basis for his deportation, including a hearing before he was whisked away, the judge ordered his return. The Justice Department filed an emergency appeal to the US Supreme Court, which seems to be their default move to advance their impunity. The Court ruled that, yes, bring the man back home, and sent the matter back to the federal court judge to implement.
Despite the Supreme Court order, in her courtroom, the Justice Department has continued to stonewall. First, they said they didn’t know where he was. When that charade ended, and they were forced to concede that he was alive and in prison in El Salvador, in subsequent hearings lawyers the government has pleaded ignorance, claiming they don’t know what is being done by US immigration authorities to get him back and in some cases pretending that they are powerless to compel El Salvador, which is a complete fiction, even as its president is arriving in DC to meet with Trump. Steps are now being taken to hold the Justice Department and immigration officials in contempt, since they are refusing court instructions and defying the Supreme Court.
This would normally be a historic bridge too far for the president and government to take. An interesting opinion piece in the Washington Post detailed other instances where the government was knocking on the door and flirting with contempt, including the famous Watergate tapes issues with former President Nixon. Despite the fact that no president and their administration has ever defied the Supreme Court in more than 250 years, the history is not all good news. There were several examples where the court seems to have blinked and walked away from the cliff in 5-4 votes to side with the administration when it appears that they were doing so because they thought the president would defy them and didn’t want to allow that precedent. One such case was a suit that hit the Supreme Court challenging the right of the US to have a naval blockade of Southern ports during the Civil War, where the Court seems to have been convinced in a state of war that President Abraham Lincoln would have defied them, if they ruled to bar such action.
It"s not that I don’t understand the reason in the extreme case, when the country was in the midst of a civil war. I get it, but I, for one, take little comfort in seeing that the Court would try to save itself first in other situations, rather than strengthen the rule of law with full integrity to advance its decision. There have certainly been a slew of reports already arguing that Chief Justice Roberts is going out of his way not to poke the bear and end up in a standoff. Trump and his team seem more than willing to call his bluff here.
The good news is that the administration and the Justice Department are not clearly stating that they are refusing to obey the court. Instead, they are trying subterfuge and silence. We can all hope that they understand what is at stake and that President Trump, like all other US presidents, will in fact obey the court, as he has promised to do both in his oath and in earlier statements.
Hopefully, his administration will finally do the right thing. If not, here comes the deluge!
