Consider This from NPR - Is Trump defying the courts?

Episode Date: March 17, 2025

"Oopsie, too late. "That post on X from the President of El Salvador got retweeted by Secretary of State Marco Rubio over the weekend with a laugh-crying emoji over a headline about a judge's ruling. The judge ordered the Trump Administration not to deport Venezuelans to El Salvador. That came after a Brown University physician in the United States on an H1-B visa from Lebanon was sent back. Even though a federal judge issued an order that she appear at an in-person hearing on Monday.In a court filing today, lawyers for the government said US Customs and Border Patrol officers said they didn't learn of the order until after the doctor was sent back.The administration insists it is not defying court orders. Trump hasn't yet openly and explicitly defied the courts. Can he undermine them just by flirting with defiance?For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

By almost any measure, a president openly defying a court order would represent a constitutional crisis, a tectonic event in American history. And yet when President Trump was asked on Sunday whether he had defied a federal judge's order, he said he wasn't sure. Well, you'd have to speak—I don't know. You'd have to speak to the lawyers about it. The order in question came from a federal judge in Washington, D.C. on Saturday. He told the administration not to deport Venezuelans to El Salvador. Trump had just invoked the Alien Enemies Act to remove people he said were members of a gang.

And the judge ordered the government to turn around any planes already in the air. At a press briefing Monday, White House Press Secretary Caroline Levitt offered slightly more clarity on the administration's actions. All of the planes subject to the written order of this judge departed U.S. soil, U.S. territory before the judge's written order. But what about the verbal order, which of course carries the same legal weight as a written order, and said for the planes to turn around if they were in the air? Well, there's actually questions about whether a verbal order carries the same weight as a written order, and our lawyers are determined to ask and answer those questions in court.

Here's what's not in dispute. More than 250 Venezuelans, some of whom the Trump administration says are members of a criminal gang, were ultimately taken to El Salvador on Saturday. El Salvador is holding them in the country's terrorism confinement center. The Salvadoran president posted a headline about the judicial order on X with the caption, oopsie, too late, and a laugh crying emoji. Secretary of State Marco Rubio retweeted it. That whole episode came after a Brown University physician in the United States on a special work visa from Lebanon was sent back, even though a federal judge issued an order that

she appear at an in-person hearing on Monday. In a court filing today, lawyers for the government said U.S. Customs and Border Patrol officers said they didn't learn of the judge's order until after the doctor was sent back. Members of the administration have attacked federal judges for blocking Trump's actions. They've even suggested courts don't always have the authority to overrule the executive branch. Levitt was asked about that directly on Monday,

and her answer was less direct. It is the administration's belief that you feel like you are bound to comply by the judge's orders. We are complying with the administration's belief that you feel like you are bound to comply by the judge's orders? We are compliant with the judge's orders. Consider this. Trump hasn't yet openly and explicitly defied the courts. Can he undermine them just by flirting with defiance? From NPR, I'm Ari Shapiro. It's Consider This from NPR. Last month, I asked University of Virginia law professor Amanda Frost whether Trump's

earlier battles with the judicial system had created a constitutional crisis. And she told me, not yet. As of today, at this moment, the executive branch has not taken the position that it can violate court orders or that it does not need to comply with court orders. So as long as we remain in a system in which the executive follows,

or at least states that it has to follow what a court says, I have hope that the system will hold. Well, in light of everything that just happened, is the system still holding? Amanda Frost is with us again. It's good to have you back. Thank you. We just heard what your benchmark was last month after the events of this weekend. Where would you say we are?

I would say that we are dangerously close to crossing that line that we discussed about a month ago. The administration continues to say that it is not refusing to comply with court orders, but we have seen it behave in disingenuous ways in terms of ignoring what courts have told it to do. And so I'm extremely worried. Soterios Johnson I want to dig into that behaving disingenuously, because not to make light of a serious situation, but I think about like two kids in the backseat of a car and one kid says, I am not putting my hand over the line that you told me not to cross. And if any reasonable observer would say actually you are, does it matter that the annoying brother is saying, no, I'm not? Well, I think it does matter in this context because I think there is a difference in kind

if an administration says we no longer have to do what a court tells us to do. And this administration has yet to say that. Nonetheless, I think it is extremely disturbing that this administration is playing so fast and loose with the courts. I keep thinking about that oopsie too late post on X, which suggests that perhaps deliberately the administration is operating in a way that is hard for courts to keep up with. And there are other examples. Last week there was a hearing before a federal judge in Maryland about layoffs of government workers and a government lawyer said he didn't know whether anyone in government could say

how many probationary workers had been fired. In this Venezuelan case, Trump invoked the Alien Enemies Act without providing the courts much time at all to stop these planes of migrants that were heading for El Salvador. How do behaviors, how do actions like that impact the judicial branch's ability to do its job? Well, there's no question that the courts are extremely busy at the moment, but courts are used to dealing with issues on emergency bases. And I would say the branch of government that is most suffering from the flood the zone approach is the executive branch itself. Its filings are sloppy, filled with inaccuracies. It doesn't have the information it needs to inform judges about what's happening. It is failing in its role before the courts and we're seeing the result, which is they're

losing most of these cases. And so if that's the case, do you think it's just a matter of time until all this gets sorted out and everyone is back in their proper lane? When I'm feeling optimistic, what I hope will happen is what's intended, which is that the courts, together with the executive, hash out what the law requires. The executive complies even when it doesn't like the result. And the end result is a win for the rule of law. When I'm pessimistic, I fear for what is to come by an administration that seems to be

willing to walk right up to the line of open impunity of the law. If I could summarize your view as the clock ticks ever closer to midnight, but we aren't quite there yet, do you have a sense of how widespread that view is? Like, do your colleagues say you're being naively optimistic or Pollyanna-ish, or are your views pretty mainstream at this point? I would say I've heard a variety of perspectives. Some people think we are deep into constitutional crisis already. Others think we need to wait before we make such a declaration and I guess I'm in that latter camp. And part of the reason for that is our nation has weathered storms before and we have pulled

through. I mean one example of course is Bush versus Gore. That was an extraordinary legal decision deciding a razor-thin election in a way that many people didn't like, and the nation took a deep breath and followed the law. My fear is that that isn't occurring this time, but I'm not going to declare that our system is broken until the administration clearly crosses that line. I will say that we've gone a significant step towards that since the last time we spoke a month ago. Does the phrase constitutional crisis actually matter?

I mean, if every constitutional law professor in the country were to say, yes, we are in a constitutional crisis right now, would that actually change anything? I think what would change, and of course it wouldn't just be professors of constitutional law, it would be the nation as a whole, it would be the markets, it would be the American people.

I think what has to change is the idea that this is acceptable. We are a nation which for well over 200 years has had a constitution that we revere. For nearly that long, we've had a view that courts are the last word on the meaning of law, whether we like those decisions or not. If we lose that, we lose one of the most powerfully important aspects of our constitutional republic, and I fear we might never get it back. Amanda Frost is a professor of law at the University of Virginia Law School. Thank you for talking with us once again.

Thank you. This episode was produced by Connor Donovan. It was edited by Courtney Dornig and Nadia Lancy. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro.