Donald Trump is testing more than America’s Constitution

There may not have been much of a common-sense argument left, let alone a legal one. Still, at least a pretence of respect for the courts clung on, in mid-March, as the Trump administration argued that it could ignore the order of a federal judge because he spoke it aloud rather than wrote it down. (Note to White House staff: do not try this excuse on the president himself.) Then on Truth Social on March 18th Donald Trump yanked the figleaf away, calling for the judge to “be IMPEACHED!!!”

With that demand Mr Trump crossed a new boundary in any president’s testing of constitutional limits, as evidenced by the first five words of the extraordinary rebuke he drew from Chief Justice John Roberts: “For more than two centuries,” Mr Roberts said, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” That, he went on, is what appeals are for.

Mr Trump is angry at the judge, James Boasberg of the district court for Washington, DC, for temporarily blocking some deportations while he considers the administration’s reliance upon the Alien Enemies Act of 1798. On March 15th Mr Boasberg ordered that planes carrying migrants to a prison in El Salvador turn around, but the planes continued on their way. The White House says more than 200 of the deportees were members of the Venezuelan gang Tren de Aragua. It has not disclosed their names or offences, and they were apparently deported without a hearing.

Besides trying to get Mr Boasberg impeached—a cause that has been taken up by some Republican congressmen—the Trump administration has appealed his order and sought to have him removed from the case. But it has not carried out further deportations under the Alien Enemies Act, sustaining the suspenseful will-Mr-Trump-or-won’t-he drama that has Americans asking themselves daily whether they are in a constitutional crisis.

As Mr Trump has asserted powers that precedent and arguably the Constitution vested in Congress and the states, numerous judges have blocked him, at least temporarily, from steps that include: limiting the right of birthright citizenship; pausing the admission of refugees to America; withdrawing federal money from medical organisations that provide care to transgender youth; and firing members of federal boards that consider workplace disputes. The administration is appealing in each instance but complying with the orders, as it has with a judge’s directive to reinstate thousands of federal employees. Yet Mr Trump has continued to resist the spirit if not the letter of such restraints: on March 12th a federal judge blocked an executive order by Mr Trump to deny federal contracts to a law firm he saw as a political adversary, and to all clients of that law firm; two days later Mr Trump issued a similar order against another law firm. Those orders seem intended to hasten the administration’s accumulation of powers by scaring firms away from litigating against them. The orders are having that effect, at any rate.

The call for Mr Boasberg’s impeachment notwithstanding, Mr Trump has continued to say he will abide by judges’ rulings. “It’s not my decision—that’ll be up to a court,” he told reporters after asserting another power no previous president had claimed, to ignore pardons issued by his predecessor. In a grudge-heavy speech at the Department of Justice on March 14th, Mr Trump said criticism of federal judges “should be illegal, and it probably is illegal in some form” (exempting, apparently, his own such criticism, even in the same speech). And yet his aides often send more troubling messages. White House spokespeople have repeatedly said that America is already in a constitutional crisis, one created by leftist judges trying to constrain Mr Trump. Tom Homan, Mr Trump’s border tsar, told Fox News that the administration would carry on regardless of Mr Boasberg’s orders. “I don’t care what the judges think,” Mr Homan said.

Yet even Mr Homan must wonder what the Supreme Court might eventually think. The Alien Enemies Act has been invoked before only during the war of 1812 and the two world wars. When Congress passed it, America was duelling with France at sea in the “Quasi-War”, so called because it was never formally declared. At least partly for that reason, President John Adams believed the law did not apply. Perhaps that history will give the court’s conservative, “originalist” justices pause. Or perhaps they will nod along with Mr Trump’s contentions that Tren de Aragua is invading America to wage war on behalf of Venezuela. Justice Roberts has an expansive view of the executive branch’s powers, and, when it comes to this or other cases that might reach him, he may hope to protect his own branch by avoiding conflict with this president.

About that saviour...

Justice Roberts may have the heaviest burden in Washington, but he is not the only American being tested by Mr Trump. As with the cuts to foreign aid, to federal staff and to transgender care, this administration is taking a kind of joy in aggression toward vulnerable people that has not been seen in American government for a very long time. Some illegal immigrants have committed horrible crimes, and all, definitionally, have broken the law. Maybe those realities alone would prompt most Americans to enjoy the slickly produced videos tweeted out by the White House showing men being chained by their hands and feet, then shuffling, heads bowed, aboard an aeroplane.

Yet already there are credible reports that some of the recent deportees were not in any gang. Maybe Americans will pause to imagine how these young men feel as they find themselves locked inside El Salvador’s most notorious gang prison, with no way to contact their families. Mr Trump believes this is all good politics. The question confronting America is whether he is right. ■

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