Violating Court Orders Is A Threat To The Republic

If the president can ignore judges, he is wholly unchecked

The Trump administration has recently begun defying court orders. When the Supreme Court commanded that they return Garcia from the Salvadoran dungeon they’ve shipped him off to—wholly without due process—the Trump administration lied about the ruling and proceeded to ignore it. Despite Garcia’s innocence, the current administration has flagrantly violated the law to keep him in a brutal prison with hardened gang members. And this all occurred after the administration violated another court order commanding them to turn around two planes that were sending people without due process to the aforementioned Salvadoran jail.

This shouldn’t come as much of a surprise, as the administration has been asserting, for quite a while, the illegitimacy of judges prohibiting their conduct. Vance, the most sycophantic mouthpiece of administration policy, recently claimed that judges prohibiting executive actions is procedurally illegitimate. While Trump said he wouldn’t directly defy a court order, this has come amidst a great deal of talk about the categorical impropriety of courts striking down his actions. Musk has made similar statements; the three most influential people in the present administration have therefore indicated some willingness to ignore the courts. And the administration has already ignored the courts twice.

Now, it’s bad enough that they’re violating the law to keep someone who is likely not a gang member in a brutal torture dungeon. But even this understates the sheer extent of the horror. A president that can defy court orders is a dictator. This is not hyperbole or exaggeration; if the Trump administration ignores court orders, then there are no checks on executive power. It can do whatever it wants.

Who is it that checks the executive? The courts and congress. If the president can ignore the courts, then, of course, the courts are no longer a check on the president. The courts can then do little more than disapprovingly wave their fingers; they lack real authority.

But this would also utterly vaporize congress’s power. Congress only checks the president by passing laws which the courts then uphold. But if the president can ignore the courts, then congress can no longer check the actions of the executive. At that point, the president could go out in the middle of Fifth Avenue and shoot someone and would face no legal consequences. At that point, he could cancel the next election and no one could stop him. If the president can ignore court orders, America will have a monarchy for the first time since King George.

It’s quite alarming, therefore, that this is the direction that the administration has been moving in. And while they’ve so far maintained a thin veneer of plausible deniability, this is not likely to last. Expect defiance of the courts to get more flagrant and obvious. Right now, Trump is testing the waters. The final extent of his authoritarian flexing is likely to be far beyond what it is today. Trump is not the sort of man who takes norms and institutions more seriously with the passage of time. If a small child has already destroyed a piece of furniture right after arriving at your house, and shown no contrition, you should dread what they will be doing by the end of the night.

Perhaps even more alarming is that the Trump administration has been pushing even more flagrantly in the direction of authoritarianism. Not content with sending asylum seekers to a Salvadoran gulag, they’ve begun seriously discussing shipping Americans overseas too—all without due process. As Noah Smith notes:

Now put all of these things together. Since A) the Trump administration argues that anyone being imprisoned in a foreign country is beyond the reach of U.S. courts, B) Trump wants to send U.S. citizens to El Salvador, and C) Trump is arresting people who haven’t been accused of any crime, this means that Trump is asserting the power to unilaterally and arbitrarily send any American citizen to a Salvadoran prison for any reason.

This is a serious threat to our way of life. Those who hated the American system came, not waving communists flags, but claiming to be conservatives. They asserted their right to ignore the courts, on the grounds that the unelected courts shouldn’t check the legitimate actions of the president. They assert they can throw anyone in a foreign jail and they don’t even need due process.

As I’ve noted before, at the end of his first term, Trump attempted to stage a coup. He tried to overturn the results of an election that he lost freely by trying to convince the vice president and state legislatures to approve fake slates of electors. Surrounded by sycophants and crackpot lawyers, Trump asserted the right of the vice president to ignore the will of the voters and appoint someone as president unilaterally. This was a serious threat to democracy as serious coup attempts tend to be. If Pence had not displayed political courage for the first time in his career, we may have had a major constitutional crisis.

Some people, defending voting for Trump, claimed that Trump would be the same in his second term as his first. This was, of course, mostly wrong. Trump is no longer constrained by responsible adults. His administration is staffed with sycophants and crazy people with no respect for the rule of law. During the first administration, Trump was seriously constrained: now, the shackles are off, and policy is dictated by the worst impulses of him and his closest followers.

But there is a major sense in which Trump’s first term foreshadowed this one. It was not the beginning of his term that was like the present one. He no longer is kept in check by responsible adults. Instead, we got a taste of what Trump two would look like at the end of his term.

After he lost, Trump was surrounded by crackpots who pushed fringe legal theories because they wanted to hold on to power. Only his closest followers, only the people who traded sanity for loyalty, only the people who would bow and kiss the ring no matter what he commanded, remained. Trump was erratic, wild, and fanatical as he increasingly desperately tried to cling to power over the protestations of anyone remotely sane.

Trump’s second administration does not look like the first one. It looks like his desperate flailing at the end of his term as he tried to illegally hold on to power after losing an election. It looks like a president who is wholly unchecked by the legal system, norms, and existing institutions. Gone are the days of responsible yet conservative policy making: in are the days of wildly unconstrained fanaticism. This time, when the fanatics come for the constitution and the American way of life, there is no longer anyone willing to stop them.