The Memo: Trump ratchets up confrontation with judiciary
President Trump and his administration ramped up their confrontation with the judiciary to extraordinary heights Monday, demanding that a judge whose ruling had incurred their disfavor should be removed from the case.
That move comes amid a still-murky controversy over the extent to which the White House ignored the judge’s earlier order in the high-profile deportation case.
Those details, dramatic in themselves, are part of a broader picture in which Trump and his allies have reacted with fury to judges who rule against them.
Billionaire Elon Musk has called for the impeachment of judges, and Vice President Vance has questioned the extent to which a president must obey the courts. Trump has, for years, attacked judges presiding over cases in which he is involved.
In another case where much remains unclear, a Lebanese professor at Brown University’s medical school was deported late last week, despite a judge’s order demanding that the courts be given 48 hours’ notice of any such move.
Now, some experts are warning of a full-blown constitutional crisis.
Mark Zaid, a prominent lawyer who has represented whistleblowers during both Democratic and Republican administrations, wrote on social media that the nation was moving rapidly toward such a crisis “where the Executive Branch refuses to abide by a judicial order.”
Zaid, who recently had his security clearance revoked by the Trump administration, added, “The Executive Branch does not get to decide to refuse to obey a court order simply because it does not like it. The more this happens, the less we will look like the America all of us grew up in.”
The key case right now centers on Trump’s decision to invoke the Alien Enemies Act of 1798 in order to speed deportations. The act has been used only three times previously, always during wartime. It was deployed during the War of 1812 and both world wars.
This was the authority used for more than 100 of the migrants deported on Saturday.
The Trump administration has refused to provide the names of the people who were deported and has been vague on other details as well. But it has characterized many of the deportees as members of the violent Venezuelan gang Tren de Aragua.
The argument that gang members can be deported under the Alien Enemies Act is itself controversial. The wording of the 227-year-old legislation primarily permits it to be used when there is “a declared war between the United States and any foreign nation or government” — something that is plainly not the case with Venezuela.
The act can also be invoked in the event of “any invasion or predatory incursion … by any foreign nation or government.”
The Trump team appears to be making its legal argument on this basis — though critics contend it is a massive stretch.
In the executive order announcing he would use the legislation, Trump alleged that Tren de Aragua had “infiltrated” the government of Venezuelan President Nicolás Maduro and that this had fueled the creation of a “hybrid criminal state” that is invading the U.S.
At an emergency hearing on Saturday evening, U.S. District Judge James Boasberg blocked the removal of Venezuelan migrants under the Alien Enemies Act. Boasberg issued a verbal order that any relevant planes in the air at the time should turn back. Despite this, at least one plane arrived in El Salvador, whose president Nayib Bukele has agreed to imprison the deportees for a fee.
The White House claimed any relevant aircraft had left United States airspace by the time the judge issued his order — though it is not clear that, even if this is true, it would put them outside the reach of a court order.
The judge, at a Monday hearing, firmly insisted that it would not.
But the Trump team has also simply asserted that the judge’s order was wrong. White House press secretary Karoline Leavitt, for example, has contended that the order had “no lawful basis.”
The administration has sent conflicting signals about what happens next.
Boasberg’s stay was scheduled to remain in place for just 14 days, while the underlying issues in the case were litigated.
Trump’s border czar Tom Homan told Fox News on Monday, “We are not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming.” It was not clear whether Homan was referring to general deportation policy or to the specific fight over the Alien Enemies Act.
The story has been moving fast.
The administration sought to have a Monday hearing into its actions postponed — a request Boasberg rejected.
At that hearing, the judge showed little patience with a distinction some Trump allies have drawn between the wording of his written order and his verbal order to turn any planes in the air around.
“You’re saying that you felt you could disregard it because it wasn’t in a written order?” the judge asked a government lawyer on Monday.
Also on Monday, the Department of Justice asked the U.S. Court of Appeals for the District of Columbia Circuit to boot Boasberg off the case.
Deputy Assistant Attorney General Drew Ensign claimed that national security concerns weighed against having the government make its case quickly and in open court. Ensign said the case should be reassigned owing to “highly unusual and improper procedures” that Boasberg had allegedly used.
The bigger picture is one in which Trump and some key figures close to him regard court rulings that go against the president as a usurpation of democracy.
The New York Times noted that Trump on Sunday asserted that the judge was “putting himself in the position of the president of the United States, who was elected by close to 80 million votes.”
In February, Musk, who has spearheaded an effort to shrink the government, complained on social media that if a judge could block a presidential order across the nation “we do NOT have democracy, we have TYRANNY of the JUDICIARY.”
Also in February, Vance wrote on social media that “judges aren’t allowed to control the executive branch’s legitimate power.”
But the reverse argument — that the administration is simply defying the courts, and opening the door to presidential lawlessness — is also being made.
Among those who see it that way is Judge Boasberg.
At Monday’s hearing, he characterized the Trump administration’s attitude as “We don’t care, we’ll do what we want.”
The Memo is a reported column by Niall Stanage.
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