The question of what happens if the Trump administration openly defies a federal court order has hung over the United States since President Donald Trump’s second term began. If that happens, it will trigger a constitutional crisis. Now, that long-awaited crisis may be upon us.
On Saturday, Trump issued a proclamation claiming the authority to deport Venezuelan nationals that, he claims, are members of a criminal gang known as Tren de Aragua. Trump alleges that these foreign nationals may be swiftly removed under the Alien Enemies Act of 1798, a law that has only been invoked three times in American history — the last time in World War II.
Trump’s claim is highly dubious. The Alien Enemies Act permits the president to order the removal of all citizens of a foreign nation when there is a “declared war” with that nation, or when “invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
The United States is not at war with Venezuela. Nor has the Venezuelan government invaded or even threatened to invade the United States.
Not long after Trump issued his proclamation, on the same Saturday evening, federal Judge James Boasberg issued two orders that temporarily halted it. The first is a temporary restraining order seeking to prevent any deportations from taking place under Trump’s proclamation until Boasberg has time to hold a full hearing and determine how to proceed in this case.
The second order certifies this case, known as J.G.G. v. Trump, as a class action lawsuit concerning “all noncitizens in U.S. custody” who are subject to Trump’s Saturday proclamation. That order forbids the government from “removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days or until further Order of the Court.”
Which brings us to the potential constitutional crisis. At a Saturday hearing on this case, lawyers for the plaintiffs told Boasberg that two planes containing Venezuelans who were deported under the proclamation were “in the air.” During that hearing, Boasberg ordered that “those people need to be returned to the United States.” He also acknowledged, however, that once the planes land and their occupants deplane, he no longer has jurisdiction to order their return.
In a document filed Monday morning, the plaintiffs’ attorneys cite publicly available flight data as well as news reports, which suggest that the Trump administration allowed these planes to land and discharge their passengers after Boasberg issued his order. If that is true, then the Trump administration defied the order and can potentially be held in contempt of court.
Meanwhile, in a second case known as Chehab v. Noem, the federal government may have removed Dr. Rasha Alawieh, a Lebanese national and professor at Brown University’s medical school, in violation of a court order requiring the government to give the court 48 hours notice before she is removed. The facts in this case are rapidly evolving, however, and two of her lawyers recently withdrew from the case.
The Justice Department, for what it is worth, claims that Alawieh was deported after federal authorities found “sympathetic photos and videos” regarding the terrorist organization Hezbollah on her phone.
There is also some uncertainty about the timing of the flights in each of the cases. In the case of the Venezuelan deportations, the document plaintiffs filed Monday primarily asks Boasberg to seek clarification from the government about whether these flights landed and discharged their passengers after the judge’s order. It’s also possible that these passengers were deported pursuant to some authority other than the Saturday proclamation, in which case Boasberg’s order would not apply to them.
Yet, even if it turns out that no one was deported illegally, the government still must comply with court orders against it, including temporary orders issued while a judge was trying to determine if the government acted illegally.
So what can be done if Trump is defying a court order?
The Trump administration claims that Boasberg exceeded his authority when he issued his orders, and it points to the alleged Hezbollah connection to justify its actions in Dr. Alawieh’s case. It’s far from clear, however, whether the ultimate merits of either case are relevant at this very early stage of this litigation. If a litigant disagrees with a temporary restraining order, the proper course of action is typically to wait until the judge holds a full hearing on the case and to argue that the order should not be extended. If the judge disagrees, that decision can be appealed to a higher court.
But a litigant cannot simply defy a court order because they think it is wrong.
Indeed, under normal circumstances, a party that defies a court order can be held in contempt of court and be subject to fines, imprisonment, or other sanctions. But it’s far from clear whether such a contempt order could be enforced if Trump is determined to give the middle finger to the judiciary.
As Alexander Hamilton wrote in the Federalist Papers, the courts “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Federal court orders, including contempt of court orders, are enforced by the US Marshals Service, a law enforcement agency housed in the Executive Branch of government. So Trump could potentially order the Marshals to not enforce any court order against his administration.
If that happens, there are few legal mechanisms remaining to make Trump obey the law. The obvious remedy for a president who commits serious legal violations and refuses to comply with court orders against him is impeachment. But, even if a Republican US House would agree to impeach Trump — a highly unlikely proposition — it takes 67 votes in the Senate to remove a president. And the Senate couldn’t even find 67 votes to declare Trump ineligible for the presidency after he incited a mob to attack the US Capitol in 2020.
For now, at least, the J.G.G. case appears to be moving very quickly. And it remains to be seen whether the Trump administration can plausibly argue that its behavior is legal. If it turns out that the administration is determined to violate court orders it does not like, however, then it is likely that the legal system has run out of tools to check Donald Trump.
