The Trump administration’s compliance with court orders started with foot-dragging, moved to semantic gymnastics and has now arrived at the cusp of outright defiance.
Large swaths of President Trump’s agenda have been tied up in court, challenged in scores of lawsuits. The administration has frozen money that the courts have ordered it to spend. It has blocked The Associated Press from the White House press pool despite a court order saying that the news organization be allowed to participate. And it ignored a judge’s instruction to return planes carrying Venezuelan immigrants bound for a notorious prison in El Salvador.
But Exhibit A in what legal scholars say is a deeply worrisome and escalating trend is the administration’s combative response to the Supreme Court’s ruling last week in the case of a Salvadoran immigrant. The administration deported the immigrant, Kilmar Armando Abrego Garcia, to El Salvador despite a 2019 ruling from an immigration judge specifically and directly prohibiting that very thing.
Until recently, none of this was in dispute. “The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal,” the Supreme Court said on Thursday in an unsigned and to all appearances unanimous order.
The justices upheld a part of an order from Judge Paula Xinis of the Federal District Court in Maryland that had required the government to “facilitate” Mr. Abrego Garcia’s return. He had by then been held for almost a month in one of the most squalid and dangerous prisons on earth.
The administration’s response has been to quibble, stall and ignore requests for information from Judge Xinis. In an Oval Office meeting on Monday between Mr. Trump and President Nayib Bukele of El Salvador, both men made plain that they had no intention of returning Mr. Abrego Garcia to the United States.
In remarks in the Oval Office and on television, Stephen Miller, Mr. Trump’s top domestic policy adviser, said the administration’s earlier concessions, made by several officials and in a Supreme Court filing, were themselves mistaken, the work of a rogue lawyer. He added that the Supreme Court had unanimously endorsed the administration’s position that judges may not meddle in foreign policy.
Ed Whelan, a conservative legal commentator, said that was a misreading of the ruling.
“The administration is clearly acting in bad faith,” he said. “The Supreme Court and the district court have properly given it the freedom to select the means by which it will undertake to ensure Abrego Garcia’s return. The administration is abusing that freedom by doing basically nothing.”
White House officials did not respond to requests for comment.
The administration has also responded to court orders blocking its programs in other ways, speaking to audiences outside the courtroom. Mr. Trump and his allies have waged relentless rhetorical attacks on several judges who have ruled against the president, at times calling for their impeachment and at others suggesting that Mr. Trump is not bound by the law.
Assessing whether, when and how much the administration is defying the courts is complicated by a new phenomenon, legal scholars said, pointing to what they called a collapse in the credibility of representations by the Justice Department. These days, its lawyers are sometimes sent to court with no information, sometimes instructed to make arguments that are factually or legally baseless and sometimes punished for being honest.
Defiance, then, may not be a straightforward declaration that the government will not comply with a ruling. It may be an appearance by a hapless lawyer who has or claims to have no information. Or it may be a legal argument so outlandish as to amount to insolence.
Sanford Levinson, a law professor at the University of Texas, said the Trump administration had exposed dual fault lines, in the constitutional structure and in the limits of permissible advocacy.
“I would like to think that at least some of the Trump administration’s arguments have crossed that line,” Professor Levinson said, “but, frankly, I don’t really know where the line is.”
Courts generally give government lawyers the benefit of the doubt, presuming that they are acting in good faith even when they make ambitious arguments for a broad conception of executive power.
“We are beyond that point,” said Marin Levy, a law professor at Duke. “It is alarming that we are even having to ask whether the government is failing to comply with court orders.”
Just hours after the Supreme Court ruled in Mr. Abrego Garcia’s case, Judge Xinis asked the government three questions on Thursday night: Where was Mr. Abrego Garcia being held? What steps had the government taken to get him home? And what additional steps did it plan to take?
At first, the administration’s lawyers refused to respond, saying in a court filing on Friday that they needed more time and at a hearing that day that they had no answers to the judge’s questions.
Judge Xinis wrote that they had “failed to comply with this court’s order,” and she called for daily updates, at 5 p.m., a deadline the administration has treated as a suggestion.
On Saturday, an administration official grudgingly acknowledged that “Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador.” The official said nothing about what the government was doing to facilitate the prisoner’s return.
Mr. Abrego Garcia’s lawyers have urged Judge Xinis to consider holding the government in contempt.
Ilya Somin, a law professor at George Mason University, said the administration was “certainly close to defiance in the Abrego Garcia case.”
“At the very least,” he said, “they are taking maximal advantage of possible ambiguity in the meaning of ‘facilitate.’ It is not plausible to interpret that term as meaning they need make no real effort.”
In a brief filed on Sunday, the administration argued that the Supreme Court’s requirement that it “facilitate” Mr. Abrego Garcia’s return meant only that it must “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”
That argument, Michael Dorf, a law professor at Cornell, wrote in a blog post, “does not pass the laugh test.”
Still, last week’s Supreme Court decision gave the administration some room to maneuver, notably in instructing Judge Xinis to clarify her initial ruling “with due regard for the deference owed to the executive branch in the conduct of foreign affairs.” The decision added: “For its part, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
The dispute seems certain to return to the justices if the administration sticks to its hard-line approach. Should lower courts order Mr. Abrego Garcia’s return or hold officials in contempt, the administration will surely again ask the Supreme Court to intervene. And if Mr. Abrego Garcia’s lawyers cannot secure his return, they too will seek further help from the justices.
Other disputes have also raised questions about whether the administration is defying the courts. A district court judge in Washington, for instance, ordered the White House to back off from its stated policy of barring The Associated Press from its press pool. But the administration showed no signs of budging.
Last week, Judge Trevor McFadden ruled that the White House had discriminated against the wire service by using access to the president as leverage to compel its journalists to adopt the term “Gulf of America” in their coverage. When the outlet refused, the White House began to turn its reporters away from the pool of journalists who cover the president daily.
Until February, The A.P. and its competitors, such as Reuters and Bloomberg, reliably sent reporters to travel with the president on Air Force One and to cover exclusive events in the Oval Office and the East Room every day a president had scheduled public events.
Recognizing that the administration would most likely challenge his ruling, Judge McFadden put his decision on hold until Sunday, and the government promptly filed its appeal on Thursday. But the stay expired on Monday, and the appeals court did not intervene to keep it in place.
Even so, the administration did not allow either a print journalist or a photographer from The A.P. to be included in the pool to cover Monday’s events, including the meeting between Mr. Trump and Mr. Bukele. The White House’s only acknowledgment of the deadline appeared to be in a filing on Monday asking the appeals court to restore the temporary stay.
The Trump administration has seemingly capitalized on confusion in other cases.
Long after judges ordered the administration to unfreeze funding from contracts and grants disbursed by U.S.A.I.D. and FEMA, contractors and states led by Democrats repeatedly reported that payments were still being held up. Twice in February, judges granted motions to enforce their orders, finding that the administration was dragging its feet.
The gap between lawyerly obstinacy and flat-out defiance seems to shrink by the day, at least in the lower courts. For now, neither the president nor the justices seem eager for the ultimate constitutional confrontation.
“If the Supreme Court said, ‘Bring somebody back,’ I would do that,” Mr. Trump said on Friday. “I respect the Supreme Court.”
Zach Montague contributed reporting
