You are never too old to learn new words.  That’s what U.S. District Judge James Boasberg taught all of us this week when he wrote that the Trump Administration had disregarded his written court order prohibiting flights to an El Salvadoran prison of deportees.   He found that their actions were “sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt.”  Criminal contempt!  It’s at this point that we all get our US History books out to best understand how our government works.

Most democracies have a written Constitution which governs the authority and structure of the government, as well as the rights of those residing within their borders – the US is no different.  As we all learned in secondary school, ours is a government of three co-equal branches of government (the Executive, the Legislative, and the Judiciary).  Each is intended to be a check on the other, as James Madison stated in Federalist Paper 51 “ambition must be made to counteract ambition”.  Thus our government is a conglomeration of state, local, and federal governments with their own legislatures, governors, courts, majority and super-majority rules for law passage, vetoes and overrides, and court interpretations, affirmations and nullifications of laws.  Ultimately all of these strictures are reliant on the participants agreeing to the terms of the laws and Constitution – thus they all swear to uphold the Constitution when sworn into office.

Having said that, Presidents and legislatures alike have, from time to time, disregarded the law and Constitution.  The courts have consistently struck down laws passed by Congress, regulations and executive orders issued by the Executive Branch, as well as actions taken by individual states.  They have also affirmed strictures that were questioned by others.  That is the essential role of our federal courts – to interpret laws and determine the constitutionality of actions of the government.  From Federalist Paper 78 to Article III of the Constitution to Marbury vs. Madison (1803, establishing the courts right to judicial review) it has been long established and accepted that our federal courts (and ultimately the Supreme Court when they deign to weigh in) are the final law of the land.  But the courts lack enforcement capabilities that the Executive Branch (with its policing divisions and army) ultimately has.  Thus when Andrew Jackson and the state of Georgia ignored the Supreme Court’s affirmation of Cherokee land rights, the Trail of Tears still happened with no consequences.  When Lincoln suspended the writ of habeas corpus at the start of the Civil War, against the express orders of the Supreme Court, the Executive Branch continued their practices and eventually Congress provided him with legislative cover.  The balance of powers set out in our Constitution has always been fragile.

Yet today’s examples are constructed of a whole different cloth. This Administration does not openly say ‘screw you’ to the federal courts.  Instead they assert a variety of absurdities and word salads, metaphorically similar to the arguments of a three-year-old.  They began with asserting that the deportation of Venezuelans is permitted under the Alien Enemies Act of 1798, which solely grants the Executive powers when Congress has declared war on another country -and no, we are not at war with any other country.  Then they transported the deportees to another country (El Salvador) without permitting the accused the right of due process afforded them in the Constitution to dispute the government’s accusations (because wearing a Chicago Bulls cap is unlikely to be persuasive evidence of terrorism in court).  After which they claimed to have no ability to control the detainees – in the crass words of our Secretary of State Rubio’s tweet “Oopsie…too late 🤣🤣🤣”.  Despite paying El Salvador $15 million this year to imprison the detainees.  Finally, following the Supreme Court weighing in on Kilmar Obrego Garcia’s deportation (someone the government has admitted to detaining and deporting in error), and ordering the government to ‘take all available steps to facilitate’ his return to the US, the government responds with questions about what “facilitate” means and stonewalls the court of jurisdiction regarding specific steps they have taken.  They go so far as to argue that the court has no role in the conduct of foreign policy – which even this Fox News analyst skewers.  In the Trump Administration’s view, any person can be jailed, tried and deported without trial or remedy – because once they leave the country, its out of their hands (their corrupt hands).

While the dispute between the courts and the Trump Administration is important, it pales in comparison to the deplorable argument of the administration that the government has every right to detain, jail, and transport anyone on US soil without a affording them their civil rights to challenge the government’s assertions.  It certainly was deplorable for the US citizens who were handcuffed and jailed by the CBP at the Canadian border last week.  It was equally deplorable that another US citizen was jailed in Florida (as they entered the state from Georgia), assumed to be a non-citizen (as their English wasn’t very good).  Even after an original birth certificate was produced to prove their citizenship, the judge still wouldn’t release the person as ICE had requested the citizen be detained (the citizen is free now).  Perhaps the Administration might be able to jail Associate Press journalists, arguing that its use of the name ‘Gulf of Mexico’ is clearly an act of war. Because with this administration, there are no limits to the criminal use of the levers of power.  Being disappeared by the government was supposed to be a South American dictatorship’s trick, not the tactic of the greatest democracy on the planet.

Thus Judge Boasberg’s education commences – saying “the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose ‘specific act or omission’ caused the noncompliance.”  Contumacious – defined as stubbornly or willfully disobedient to authority.  That sort of behavior doesn’t work in a Constitutional democracy – as the judge puts so eloquently – “The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it.”  Except it does work when the other checks fail to operate – when Congress sits on their hands and chooses not to provide governmental oversight or hold parties who ignore the Constitution to account.  While the Congress fails to protect its citizens from tyranny and harassment by the government, the contumacious President pretends to ‘protect’ Americans.

And the national disgrace continues…