Does the Supreme Court still matter?
What happens when the executive branch defies it?
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If you’ve parented a toddler, you’re familiar with the ignoring of boundaries. The questioning of authority. The pushback on rules. For two-year-olds and teenagers, this is normal cognitive development.
For branches of government, it’s not.
The Constitution requires the president “take care that the laws be faithfully executed.” This means the president must enforce our laws no matter what. Since 1803, the Supreme Court’s job has been to clarify what our laws mean. Presidents and congresspeople, for centuries, have agreed to this.
Until now.
You’ve likely heard about Kilmar Abrego Garcia, an El Salvador native who came to the U.S. in 2011 at age 16 — without documentation — because of gang violence (to avoid threats of kidnapping and extortion). Abrego Garcia settled in Maryland and married a U.S. citizen. They have three children. In 2019 he was arrested for soliciting work outside a Home Depot. I’ll let Rolling Stone explain what happened next.
In order to justify the detention and potential deportation, the Department of Homeland Security (DHS) submitted a Gang Field Interview Sheet (GFIS) to immigration court. According to Abrego Garcia’s petition last month, the GFIS police submitted explained that “the only reason to believe Plaintiff Abrego Garcia was a gang member was that he was wearing a Chicago Bulls hat and a hoodie; and that a confidential informant advised that he was an active member of MS-13 with the Westerns clique.” The “Western” clique of MS-13 “operates in Brentwood, Long Island, in New York, a state that Plaintiff Abrego Garcia has never lived in,” the petition read.
Two immigration judges denied Abrego Garcia bail that year, but a third found his statements credible and issued a ‘withholding from removal’ order. That means he cannot be deported to El Salvador and his presence in the U.S. is now legal.
Six years later, Abrego Garcia was among the 238 people deported to El Salvador’s infamous prison, CECOT, on March 15th. Robert Cerna, a field office director for ICE (Immigration and Customs Enforcement) admitted in a sworn declaration that Garcia’s removal was “an administrative error.” The Trump administration’s own lawyer also admits the error (and was fired for doing so). On April 4th, a U.S. District Judge said the government must “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” The Trump administration quickly appealed to the Supreme Court. On April 10th, the Supreme Court — in a 9-0 decision — upheld most of the lower court’s order.
The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.
As of April 16th, the Trump administration has quickly obliged not listened. In a dystopian meeting with El Salvador’s president in the Oval Office, the two leaders made clear they have no intention of facilitating his return.
The takeaway isn’t the circumstances, which are wildly cruel. It’s that the White House is actively ignoring the Supreme Court, and may keep doing it.
We’ve only been here twice before, thanks to Andrew Jackson and Abraham Lincoln. In 1832, Jackson refused to enforce a Supreme Court order requiring the state of Georgia to free an imprisoned missionary. In 1861, Lincoln ignored an order to justify his detaining of a Maryland farmer who (allegedly) tried to sabotage Union troops. Trump’s ignoring of this order would be a third such example.
I wonder what the leader of the Supreme Court thinks of this. At his Senate confirmation hearing in 2005, Chief Justice John Roberts said, “it's my job to call balls and strikes and not to pitch or bat.” That quote has come to define his judicial philosophy: He’s the umpire, not the player.
But what happens when one team ignores your calls? If the pitcher pretends you said ‘strike’ when you said ‘ball’? The game is unplayable. Umpires’ authority comes from the teams’ shared deference.
Like umpires, judges have power if we agree they do. This is because judges can’t enforce their own rulings. U.S. Marshalls, as I’ve written about before, enforce court orders. They’re in the executive branch, in the Department of Justice. The president oversees the DOJ and appoints the person who runs it (the attorney general). It doesn’t take a genius to see how a president can refuse to enforce a court ruling against himself.
When that happens, members of the administration can be found in contempt of court. Ultimately, judges can force cooperation by issuing fines. If the officials don’t pay, judges can put liens on their bank accounts or seize their property (and don’t need the executive branch’s help in doing this). Financial institutions assisting the courts would likely feel the administration’s wrath (look at how quickly law firms caved). Still, it’s the only way judges can force members of the administration into compliance.
It’s bad enough the White House is sending people with no criminal record (besides crossing the border illegally, which is a misdemeanor) to a foreign prison for life. It’s scary enough that the legal logic behind these moves could apply to U.S. citizens as well. But if the checks and balances built into our constitutional system don’t hold, what’s the emergency brake on authoritarianism? Congress trying to neuter lower courts’ power should also alarm people.
A republic — a democratic one, at least — functions when we play by shared rules. Our laws are those rules. “In absolute governments the King is law, so in free countries the law ought to be King,” wrote Thomas Paine in 1776. As we come upon the 250th anniversary of those words, if the president can ignore a whole branch of government, it’s not clear we still fit into Paine’s ‘free country’ definition anymore.
It’s one boundary we really shouldn’t want to test.
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