Justices who last year handed the president immunity in the exercise of his core constitutional powers can, and must, stop the administration from defying judicial orders in cases such the unlawful rendition of Kilmar Abrego Garcia

By Robert Delsman

Donald Trump is currently enjoying a game of cat and mouse with the federal courts in an apparent effort to usurp the role of the judiciary in interpreting the laws and Constitution of the United States.

According to the Associated Press, as of April 18, federal courts had fully or partially blocked President Trump’s actions in 48 cases during his short second term while another 67 cases against his assertions of imperial power were pending.

The administration’s responses have taken various passive-aggressive forms, but its overarching position appears to be that the administration has the power in the face of express contrary judicial orders to interpret the laws and Constitution in accordance with the MAGA zeitgeist pending appeal rather than comply with such orders during appeal. In some cases the lack of appropriate responses is tantamount to open defiance.

The case of the unlawful rendition of Kilmar Abrego Garcia to a Salvadoran supermax prison in the jungle is particularly instructive. After the Supreme Court upheld by a 9-0 vote a lower court’s order that the administration facilitate the return of Abrego Garcia in order to afford him his constitutionally guaranteed due process rights, Trump and Salvadoran President Nayib Bukele mocked what they perceive as the powerlessness of the courts during a meeting in the Oval Office as they smirkingly denied that either had any power to implement the courts order of return.

The event featured a staged pretend good-faith interpretation of the Supreme Court’s order by Stephen Miller,
deputy chief of staff for policy, as a complete vindication of the administration’s position, compelling it to do nothing.

At the same event Miller and various other Cabinet members, including Attorney General Pam Bondi, anticipatorily defied the Supreme Court’s order by categorically asseverating that Abrego Garcia will never be allowed to return to or live in the United States again.

Which brings us to an interesting view of the chess board looking only two or three moves ahead.

Major Premise. Trump reveled in his victory last year in the case of Trump vs. United States (603 U.S. 593 (July 1, 2024)), in which the Supreme Court out of whole cloth found that the Constitution confers absolute immunity on the president in the exercise of “… his core constitutional powers …” and “… presumptive immunity from prosecution for all his official acts” (Trump, P. 42), even as the court admitted that the express language of the Constitution does not confer such immunity.

The Founders certainly were aware that immunity was an issue, because they conferred legislative immunity upon Congress but at the same time chose not to grant immunity to the presidency. (The decision is reminiscent of Heller, in which Justice Scalia in 2008 suddenly found an individual right to bear arms under the Second Amendment after more than 200 years of consistent jurisprudence had determined that the right to bear arms under the Second Amendment was contingent upon membership in a state militia under the control of the governor, but that is a discussion for another day.)

Minor Premise. Because the Supreme Court in Trump declined to define the precise scope of the president’s core constitutional powers and instead imposed a case-by-case analysis leaving such a determination to the courts, many observers at the time regarded such a setup as a raw power grab by the court (and it certainly was that, since it meant that every decision regarding presidential immunity would ultimately have to come back to the Supreme Court); however, the giddy victors on Team Trump may have missed an important pesky underlying principle in the case:

“No matter the context, the president’s authority to act necessarily ‘stem[s] either from an act of Congress or from the Constitution itself.’ Youngstown, 343 U. S., at 585.” And, “If the president claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so. Youngstown, 343 U. S., at 655.” (Trump P. 7).

Trump may argue successfully that, prior to the issuance of any relevant court order, the original decision to render Abrego Garcia to a Salvadoran hellhole under some or other color of authority was an exercise of core presidential powers and that he is thus immune from prosecution with respect to such action. However, the analysis is flipped on its head after the district court issued an order to return Abrego Garcia and to afford him due process.

Conclusion and checkmate. If Trump/the administration defies the district court’s order as affirmed 9-0 by the Supreme Court in the Abrego Garcia case or any other case, the issue before the court will no longer be whether Trump is entitled to immunity in the exercise of core presidential powers regarding immigration matters but rather whether defying the legitimate order of a coequal branch of government is an exercise of core presidential powers.

The answer to that question must be a resounding “No,” because the alternative would be the utter collapse of our constitutional order and the institution of a dictatorship. There is no possible argument that defiance of court
orders “stem[s] either from an act of Congress or from the Constitution itself,” and thus defiance of court orders by definition cannot constitute an exercise of core presidential powers. Maybe Donald should come to Ashland this summer to see the excellent OSF production of “Julius Caesar” if he has any doubt about the historical consequences that may attend such an attempt to seize dictatorial powers.

The result will be a finding that Trump does not enjoy any immunity with respect to any defiance of court orders
even pending appeal of such orders. The Supreme Court at the same time could abrogate the silly Justice Department memorandum disallowing the prosecution of a sitting president (24 Op. OLC 222 (2000), which would mean that Trump could face prosecution while in office by the Justice Department, state attorneys general or special prosecutors appointed by the courts.

Even if the court does not go so far as to overrule the DOJ memorandum, the prospect of facing prosecution and prison after he leaves office would likely be sufficient to prevent Trump’s defiance of court orders. If not, the
United States will plunge into full-blown dictatorship and potential consequences too terrible to contemplate.

Robert Delsman lives in Ashland.