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Last Saturday, three planes carrying approximately 200 Venezuelan migrants left the U.S., bound for a mega-prison in El Salvador. The Trump administration justified the deportation by saying most of the men on the planes were members of the Tren de Aragua (TdA) criminal gang.
Lawyers for some of the men say their clients were misidentified as gang members, in many cases, because of tattoos unrelated to TdA. In one case, a lawyer says the tattoo may have been a reference to the logo for the popular Real Madrid soccer team.
None of the men had the opportunity to argue against the administration’s assertion in court because they were deported under the Alien Enemies Act, which President Donald Trump had invoked the previous day. The act gives the government the power to expel foreigners from hostile nations during wartime or an invasion, without due process.
The U.S. is not at war with Venezuela or TdA, nor is the gang a country — one of several reasons federal judge James Boasberg ordered the planes to turn around last Saturday. Boasberg concluded that the administration likely did not have the legal authority to make the deportations.
Despite the order, the planes landed, and the men were taken into the custody of the Salvadoran prison, complete with online taunting by Trump administration figures. The episode set off a legal and political firestorm over whether the administration had openly defied a federal court order, and what would come next if so.
“If anyone is being detained or removed based on the administration’s assertion that it can do so without judicial review or due process,” Jamal Greene, a law professor at Columbia, told The New York Times, “the president is asserting dictatorial power and ‘constitutional crisis’ doesn’t capture the gravity of the situation.”
There are about 1,700 federal judges in the U.S., and all are appointed by presidents and confirmed by the U.S. Senate — not elected. Trump and his allies have argued that it is, in effect, anti-democratic that any single judge, from any district, can overrule the will of the president on a national level.
Skepticism of the federal courts on these grounds is not a distinctly Republican or conservative preoccupation: In the aftermath of Dobbs v. Jackson Women's Health Organization, the 2022 Supreme Court decision that struck down Roe v. Wade, prominent Democrats also complained about the undemocratic nature of rulings by unelected judges. A few even made the case for defying judicial rulings they disagreed with.
More broadly, presidents have long jockeyed with the courts over power. Franklin D. Roosevelt’s unrealized plan to expand the Supreme Court to up to 15 justices to add members sympathetic to his New Deal programs is just one memorable example.
However, Trump’s attacks on the judiciary are unprecedented in some ways, especially the extent to which they’ve been directed at individual judges.
Trump has called Boasberg — who was first appointed to the Washington, D.C., bench by President George W. Bush — “a radical left lunatic” and called for his impeachment. Almost immediately, some Republican House members introduced articles of impeachment against Boasberg. The effort is unlikely to go far, as it would require support from Senate Democrats to convict. Still, some experts see it as an escalation in Trump’s longstanding conflict with the judiciary. To date, no federal judge has ever been removed from office “because of dissatisfaction with his or her rulings,” a former judge told NPR.
The personalized and agitated tenor around judges has some of them fearing for their personal safety and that of their families. That was true even before the recent controversy over the deportation flights.
Congressional Republicans are pursuing legislation that would prevent district courts from issuing sweeping national injunctions altogether. On Thursday, Trump also called for the Supreme Court to curtail the power of district court judges to issue national injunctions.
If either came to fruition, it would massively untether the administration from judicial checks. According to The Washington Post, there are 13 active cases where a federal judge paused or reversed a Trump administration policy. That means about once every four days since Trump’s inauguration, a judge has concluded that the administration likely broke the law.
Trump officials have denied that they are defying the courts, and on Wednesday “border czar” Tom Homan said that he will let the legal battle over the Alien Enemies Act play out before using it for more deportation flights. But at the same time, Boasberg has ruled that administration lawyers evaded some of his questions about the deportations or gave “woefully insufficient” answers.
If the Trump administration were to simply begin ignoring the courts, it’s unclear what could be done to stop it. Federal court orders are generally enforced by the U.S. Marshals Service — an agency under the Department of Justice. As Vox’s Ian Millhiser wrote this week: Trump could simply tell the U.S. attorney general to instruct marshals not to enforce court orders against his administration.
While Congress could impeach Trump if he blatantly ignores the law, that outcome is unlikely for the same partisan reasons that will probably save Boasberg from removal.
Still, some argue that the point isn’t necessarily defiance — it may be just as much about the spectacle of defiance and punishment. In a post this week, historian Timothy Snyder opined that elements of the standoff seem designed more for public consumption than to achieve any discrete immigration enforcement goal.
“They are deliberately associating the law itself with people, the deportees, who they expect to be unpopular,” Snyder wrote. “In this way they hope to get popular opinion on their side as they ignore a court order. But if they succeed in making an exception once, it becomes the rule.”
