Since Donald Trump took office, on January 20th, his Administration has slow-walked or outright failed to comply with court orders related to a range of issues, most notably immigration and government funding. I recently spoke by phone with Samuel R. Bagenstos, a professor of law at the University of Michigan and a former general counsel to the Department of Health and Human Services in the Biden Administration. The goal was to go through some of these cases to understand why legal experts are so concerned, and whether there is a larger strategy to the Administration’s behavior. During our conversation, which has been edited for length and clarity, we also discussed the problem with the phrase “constitutional crisis,” whether bureaucratic incompetence could really be the reason for some of Trump’s actions, and why the past two months have been so unprecedented in American history.
Are we living through a constitutional crisis, or do you feel like we’re still some distance away from one?
I really hate the significance that’s being put on the phrase “constitutional crisis.” We are living through a massive assault on basic premises of our constitutional system. It’s been brewing for a long time, but it’s been acute for the last two months. Call that a crisis or not, but either way we are in deep, deep trouble.
Why don’t you like the phrase?
It has so many potential meanings. A constitutional crisis could be something that is a very discrete event, where two branches of government stare each other in the face in what looks like a standoff, and then they eventually resolve it. Or a constitutional crisis could be, Wow, it looks like basic building blocks of our constitutional system are about to go away. I think we’re much more in that second mode here. The phrase suggests that once you cross a certain point, something bad is going to happen that didn’t happen before. And so everybody starts asking, Well, have we crossed it yet? If the President is winking at court orders but not really defying them, is that enough? If the President is defying district-court orders but not the Supreme Court, is that enough? And I think that’s sort of a fool’s game. I’d rather just focus on what the President is doing.
Why does this seem to you more about the basic building blocks of our constitutional system going away, as opposed to two branches—in this case the judiciary and the executive—facing off?
I think it’s more than just the President facing off against the judiciary. We have to look at what all these disputes are about. How did these cases get into court in the first place? We have a President who has made very clear that he believes he has the prerogative to pick and choose what laws passed by Congress he has to follow. And so to me that’s the first and most fundamental challenge to our constitutional order here. All of these cases are about laws Congress has passed. Congress passed laws appropriating money for particular purposes. Congress passed laws creating certain agencies. Congress passed laws creating processes for dealing with immigration. And the President just doesn’t want to follow them. That’s why he’s been brought to court.
The President and his people have been very overt about their belief that they don’t have to follow the laws Congress has passed. Now we’re getting to a point where Trump and Musk and the people in this Administration are suggesting that they might not be bound by the courts holding them to those laws. I think that compounds the problem—I don’t think that is the problem itself. I think that’s a symptom that makes it worse.
The case that’s received the most attention is about a group of Venezuelan men who were flown to El Salvador last week, in violation of a judge’s order. It appears that one of the three planes had not left when the judge ordered that the government not deport these men, at least temporarily. Have you heard anything specific from the Administration in their defense of their behavior that makes you think this was something other than defiance of a court order?
No, I have not.
They have said that they weren’t told in time. They’ve said that some of the planes were over international waters. They have said that the judge’s order that the planes be turned around was verbal, not written.
When you look at the submissions that the Department of Justice has made in defense of what happened here, you see two things. You see a series of arguments that this really wasn’t a violation of the order. And I think that’s important—that the Trump Administration has consistently acted at least under the pretense that they are trying to comply with all of these court orders. But then it’s surrounded by a whole bunch of language and rhetoric that strongly suggests that they don’t believe the courts have power to act in these cases.
They’re basically saying, Look, we have a bunch of arguments, however implausible, that we were complying, but, anyway, you don’t want to push this, judge, because we don’t really think you have the power here. It’s a way of trying to get some leverage in what really feels like a negotiation with the court. That’s one way to think about these arguments: they’re not necessarily being offered in the sense that this court or any other court would really believe them, so much as this gives them a way to say they’re complying while also telling the court that you better not push us.
Now what are the arguments they’ve made? The argument that the planes were in international waters—well, the planes have radios. Obviously, if the President or the people who the pilots answer to told them to turn the planes around, they would have turned the planes around. The people making that decision were within the United States, and within the jurisdiction of the court. The idea that the planes were outside of U.S. airspace, and therefore they couldn’t do anything about it, that’s just laughable on its face.
It also appears that these planes may have taken off during the hearing. And certainly when I was working in the government—and I worked in three Presidential Administrations, during which I worked in or very closely with the Department of Justice—we would never have come close to trying to moot a pending hearing before a judge, to take a judge’s jurisdiction away by trying to get planes in the air before the hearing started or certainly before it ended. Secondly, the fact that they’re making the argument shows a lack of respect for the judicial system and a lack of willingness to submit to judicial review of their actions.
As for the oral order and not the written order of the court, well, this was an emergency situation. It was a hearing that was called precisely because there was a real worry that the Administration would try to deprive the court of jurisdiction. And so what the judge said very clearly in the hearing was that you have to make sure those planes turn around if there are any planes in the air. That was clearly communicated to the Department of Justice, which represents the Administration here. The minute written order was just a summary of what had happened orally. That’s what so-called minute orders are. That’s the difference between a minute order and a fully fleshed out order that stands on its own. The fact that not every word the judge said in the hearing was reflected in the minute order doesn’t mean he was somehow implicitly taking back what he said.
I had asked another lawyer about this question of moving ahead with your plans before a court date, and he said that, until there’s a temporary restraining order telling you that you can’t do it, it’s relatively normal for governments to keep doing what they are doing. Is that not your understanding, though?
I think we might be having a conversation about the timing here. It’s one thing if you’re the government and you’re doing something controversial that might trigger a lawsuit or that maybe has triggered a lawsuit, but there’s no impending hearing for a temporary restraining order. Well, until there’s an order issued against you, you are legally free to continue to engage in the behavior that’s been challenged. And, to the extent that’s what your friend is saying, that makes total sense. When a hearing has been scheduled on an emergency basis and it is hours, if not minutes away, taking an action to deprive the court of its ability to decide the motion that is before it at the emergency hearing is not something that is at all normal. And that seems to be, at best, what they did here. So I don’t think the story is a good one for the Administration, and I don’t think it shows the kind of respect for the courts that the Department of Justice and the executive branch usually show.
Another case concerns a Lebanese doctor, Rasha Alawieh, who was deported last week. She had a U.S. visa, and there’s some question about whether her deportation was done in defiance of a judge’s order. The government is saying that by the time the order from the judge came through she had been deported.
I think I need to understand the facts of that one better. Certainly, the judge in that case has suggested that there may be a violation of his order. I think one of the complicating factors is that immigration law is complicated, and, you know, she had left the country and was trying to reënter. I’m not sure I have a good answer factually on what happened there, but it’s certainly very troubling in light of the court’s order and is part of the general pattern, but I wouldn’t want to litigate it yet.
During the first Trump Administration, there often was a lot of incompetence. This term seems like it will be perhaps less incompetent and even more malicious, but I am curious about the degree to which something like lawyers for the Department of Justice communicating with agents for Immigration and Customs Enforcement can take a while, as the government claims it did here, because of bureaucratic incompetence.
There are glitches in communication sometimes. I will tell you though that in my experience as the general counsel of a Cabinet agency in the previous Administration, where we were often in litigation that challenged our own actions and that was proceeding on an emergency basis, we were in very close touch with the Department of Justice attorneys and were very careful not to take action that would violate an order of the court or that would even come close to violating an order of the court, and we wanted to make sure that we would act in a way that was consistent with what the court said. I find it inconceivable that this sort of thing would have happened in our Administration, at least in the part of our Administration that I worked in, because we were in such close touch.
In an earlier case, from January, a Rhode Island judge said, basically, that the Administration had ignored his order to unfreeze federal funds that the Administration had tried to stop from being disbursed. What is the status of that case?
There was the initial funding-freeze memo that was issued by the Office of Management and Budget that was the target of the lawsuit. And O.M.B. very quickly purported to withdraw it. But then on the same day that they withdrew the memo the President’s press secretary said, We haven’t withdrawn the freeze. So the judge issued a temporary restraining order, saying, Well, you haven’t actually withdrawn the freeze, and you have to. You’re violating Congress’s power of the purse by freezing appropriated funds. Then there was a great deal of evidence presented by states and grantees that although the government had been ordered to unfreeze funds, it was not doing so. And so the judge said that the government was violating his order. He said, I’m not going to hold you in contempt, but I am going to issue an order enforcing my order. And there was still very significant evidence that the government was refusing to spend the funds that had previously been frozen. And then, in issuing a preliminary injunction, the judge again said, You violated my order. That is now on appeal.
I can tell you that some funds have been unfrozen since the initial order and the preliminary injunction. But I talk to grantees, and there are a number who still tell me they have not gotten the money that should be going to them. What you’re seeing in these cases is at best slow-walking compliance with court orders and probably some continued resistance to compliance.
We have something similar in a case involving U.S.A.I.D. grants. The government initially froze all these grants and contracts. A court issued an order saying you can’t do that. You have to unfreeze the grants. And then U.S.A.I.D. and the State Department said, O.K., well, what we’re going to do is we’re going to go through the grants one by one and decide, not based on the blanket freeze but one by one, whether it’s appropriate to continue each grant. They somehow managed to get through close to ten thousand grants and contracts that they say they individually reviewed up to the level of the Secretary of State in about six weeks. They decided to cancel more than eighty per cent of them. And then the court said, Well, I’m still enjoining you from a blanket freeze, but I don’t have the authority to enjoin you from individual decisions. The individual grantees might have to sue about that. This may reward the Administration’s conduct.
When you say “reward the Administration’s conduct,” do you think that the judge had a choice or that just the way our system is set up, there’s no way to do anything about it?
We’re in a situation where we have something that is beyond unprecedented in the executive branch in terms of its assault on basic premises of our constitutional system, and particularly of congressional supremacy in the area of spending money. And so that is a very difficult matter for courts to deal with. They don’t have a lot of experience dealing with it. Following ordinary procedural rules, as the judges are doing, may well be the right choice in the sense that it’s following legal practice. But it also is in some ways insufficient to provide a remedy to stop or unwind or rectify this assault on basic premises of our system.
I think I totally understand where the judgment’s coming from. If it’s one thing to say a blanket refusal to spend money is a violation of Congress’s power of the purse, it’s something else once the Administration says, We’re making decisions based on individual grants and based on relevant legal factors related to individual grants. Now, I think it’s implausible that they did any serious analysis of each individual grant when we’re talking about thousands of grants over the course of a six-week period, that purportedly each one individually was briefed up to the Secretary of State. But I can understand why in ordinary legal practice a judge doesn’t second-guess when a high-ranking official of the executive branch says, I engaged in this individualized analysis. So I think they’re bringing ordinary processes to a very extraordinary situation.
It does seem that this is an Administration intent on acting as if it is not bound by the law, and that the specific details of each case are worth looking into and, of course, litigating, but that doing so may miss the bigger picture. Or is that not right?
I think that’s a fair description. This is definitely a case where you’re going to have a better understanding of what’s going on if you’re looking at the over-all picture. We can have arguments about these individual cases. But although litigation has been very important in stopping the most egregious abuses, in bringing facts to light about what’s been going on, litigation is not going to ultimately be the solution here. The way litigation works is it adjudicates discrete controversies between particular parties. It’s not set up to adjudicate the basic premises of our constitutional system being attacked in a significant way. Here we have a broad assault that is made up of many discrete decisions put together. It’s really an assault on the prerogatives of Congress, which is the people’s branch.
Well, they don’t give a shit.
Right. That’s where I was going to go. One of the very depressing and dispiriting aspects of this is that Congress is not standing up for its prerogatives. Probably the greatest opinion in the history of constitutional law is Justice Robert Jackson’s opinion in the steel-seizure case. One of the things he says is that President Truman violated the Constitution in trying to seize steel mills, purportedly for war-production purposes. To me, the most important part of the opinion is when he says, Look, the courts can’t countenance this kind of violation of congressional prerogative. Because the seizure of the steel mills would both regulate commerce and constitute a taking of property that would require compensation, only Congress could authorize it. And I think what we’re seeing right now is a legislative branch that is not standing up for its prerogatives. People expect too much if they expect the courts to try to aggressively defend legislative prerogatives when Congress won’t do that.
