Updated April 21, 2025 at 07:18 AM ET
In the early hours of Saturday, the U.S. Supreme Court seemed to signal it is losing its patience with the Trump administration.
On April 7, the high court clearly said that if the government intends to deport a foreign-born resident, it must notify the individual "within a reasonable period of time" so that the individual has the ability to challenge the removal in court prior to deportation.
In the nearly two weeks that followed, however, the Trump administration dragged its feet, avoiding meaningful compliance with the court's order.
Then late Friday afternoon, on Good Friday, the court had a new deportation case on its docket, one that suggested the Trump administration was violating the terms of the earlier order.
Racing to the Supreme Court, lawyers for the ACLU told the court that dozens of Venezuelan detainees were about to be deported. They said that the men were notified, in papers written in English, which they didn't understand, that they were eligible to be deported under the Alien Enemies Act. And, the ACLU said, the men were being loaded on to buses that presumably were going to take them to the airport for deportation.
This time the high court acted swiftly, releasing a one-paragraph order so quickly that the court did not even wait for the two dissenters to file their opinion explaining their disagreement. That was not the only extraordinary feature of the court's order.
Although couched in legal terms, the order reeked of mistrust for the government.
"The government is directed not to remove any member of the putative class [of detainees] from the United States until further order of this court," the justices said.
The court went on to note that the detainees' case is pending before the Fifth Circuit Court of Appeals, and that pending the outcome in that most conservative court, the solicitor general "is invited to file a response" to the still pending application for review by this court "as soon as possible." In other words, the court was saying to the administration, whether you win in the Fifth Circuit or not, this isn't over yet.
Is this a constitutional crisis?
So now, let's take a deep breath and figure out where we are.
If you have been a reporter in Washington for a long time, you have seen lots of alleged constitutional crises. Some, in hindsight, were not. Others, like President Nixon's attempts to hide a criminal conspiracy in the White House, were. But in Watergate, Congress operated within a series of norms, and Republicans, when faced with stark, on-tape evidence of Nixon's lies, corruption, and perfidy, abandoned him. When the Republican congressional leadership told the president he had lost virtually all support, Nixon resigned rather than be impeached, convicted, and removed from office.
Today, with many Republicans terrified of crossing Trump, it is not clear that Donald Trump could do anything to lose his GOP support in Congress. But in a clash with the Supreme Court, he could lose a lot. So too could the court, because it has few tools to actually make a president do something. And if a president succeeds in defying the court, the whole system of government, and of checks and balances, would be in peril.
So, are we in a constitutional crisis? Think of the country right now as the pot on a stove. A week ago, one might have said that the flame controlling the temperature was on medium. But in the days since then, the pot has been inching closer to high, and a full-on clash between the Supreme Court and the president.
Two weeks ago, the court told the Trump administration it had to "facilitate" the return of a Maryland man named Kilmar Abrego Garcia to the U.S., where he had been under a protective court order barring his deportation. An immigration judge had ruled that Abrego Garcia had demonstrated a reasonable fear that were he to be returned to El Salvador, he would risk death or torture from gangs that he had refused to join. The judge thus granted Abrego Garcia, who entered the country illegally, protection from deportation.
Nonetheless, the husband and father, who in the course of his 14 years in the U.S. has never been charged with a crime, was grabbed by ICE officials, and, the administration admits, "mistakenly" deported to El Salvador. The administration says he's an MS-13 member, an allegation his lawyers reject.
Since then, however, the president has continued to insist he has no obligation to bring Abrego Garcia back to the U.S. from the detention center in El Salvador where he is being held at the behest of the Trump administration. The U.S. is paying El Salvador $6 million to imprison more than 200 alleged gang members deported from the U.S., presumably with more to come. And last week saw the spectacle of the president of El Salvador meeting with Trump at the White House, and the two men pronouncing that they had no obligation to do what the Supreme Court had just told Trump to do.
Trump, for his part, has continued to openly flirt with the idea of deporting American citizens to a Salvadoran prison, too. And the president of El Salvador didn't seem averse to the idea.
An extraordinary opinion
Meanwhile, the federal district judge in charge of Abrego Garcia's case in Maryland, Paula Xinis, has sought to carry out the Supreme Court's instructions on facilitating Abrego Garcia's release. She set a schedule for daily updates and sought to gather more information, but she was essentially stiffed by the administration.
So, Judge Xinis, for the first time, raised the prospect of holding contempt proceedings against the government, and the administration asked the Fourth Circuit Court of Appeals to block her efforts.
That produced a truly remarkable opinion, written by Judge J. Harvey Wilkinson, a very conservative judge appointed by President Ronald Reagan, who forcefully rejected the administration's plea. Writing for a unanimous three-judge panel, he said that the Supreme Court's order to facilitate Abrego Garcia's release means that Abrego Garcia should be returned to the United States and afforded the due process of law here to which he is entitled. A continued failure to comply, said Wilkinson, would "reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood."
"If the Executive claims the right to deport without due process and in disregard for court orders," he said, "what assurances will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home. And what assurance shall there be that the executive will not train its broad discretionary authority power upon its political enemies?"
Wilkinson concluded with a warning about how Trump's tactics have produced a constitutional crisis, though he did not use that phrase: "Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around," he said, with Trump claiming the "illegitimacy" of the courts, and the judiciary, by dint of "custom and detachment" only able "to sparingly reply." At the same time, the Executive has much to lose, too, he said, because the public will come to perceive "administration's "lawlessness and all of its attendant contagions."
Trump "may succeed for a time in weakening the courts," Wilkinson said, but over time, "history will script" a "tragic" ending and the law "will sign its [own] epitaph."
Straining for an optimistic note, Wilkinson concluded, "We cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time."
A day after the Fourth Circuit opinion was released, Trump was railing at the courts again, claiming that Abrego Garcia is a "very violent person and they want this man to be brought back into our country."
None of this is lost on the Supreme Court, which has sought not to precipitate a direct constitutional clash with Trump. But at some point in the not too distant future, the high court may have to confront the president head on, even though the court's tools to force compliance are limited.
Chief Justice John Roberts, at his confirmation hearing 20 years ago, opined that "judges have to have the courage to make the unpopular decisions when they have to," including striking down as unconstitutional acts of the executive. "That is the judicial oath," he said. But he likely never imagined a president as insistently recalcitrant as Trump.
Copyright 2025 NPR
