Like much of everything else since the inception of the second Trump Administration, I do not imagine this current firestorm concerning the deportation of illegal Venezuelan immigrants to El Salvador over the objections of a Federal District judge will last long. President Trump—love him or hate him—is a master of the media blitzkrieg. The news cycle will doubtless move on to some new outrage in the next week.
However, I think it is important to take a moment to consider what this move by the Government means.[1] Nothing written here is written in praise or criticism of the Government’s actions, mind you. Instead, I want to focus on the historical importance of this moment.
From the Government’s perspective, the judge’s pronouncement that the plane harboring the illegal immigrants be turned around was not a valid one. First, because the order was an overreach of judicial authority. Second, because the plane had already taken off for El Salvador at the time the judgment had been signed, and there were classified logistical issues with turning it around by that point. And third, because it seems that, when the judge gave his oral decree, he did so without providing proper legal precedent for doing so. Thus, according to the Government, they were not only within their rights not to order the plane return, but were under no obligation to do so in the first place.
The DOJ has argued that the judge’s oral decree was an overreach of the judiciary into the role of the executive branch. This will sound strange to the layman, since in our day and age any discussion of “checks and balances” generally revolves around executive overreach. However, it is a two-way street. Here, the judge stepped on the toes of the executive, whose job it is to enforce the laws passed by Congress. Here, the law in question is the Alien Enemies Act. By ordering the plane to turn around, the DOJ argues the judge tried to circumvent this constitutional authority and responsibility of the executive.
DOJ attorneys have also intimated that some of the information concerning the flights is classified. Thus, the Government also argues that the judge did not have the requisite knowledge to make a determination on what should happen to the plane. This dovetails nicely with the aforementioned “checks and balances” argument, since it provides a real-world example of why the judiciary should “stay in its lane,” so to speak.
Further, the Government will likely argue in the near future that judges are not kings. They do not get to sit on their thrones in the fiefdom that is their courtroom and order the movement of federal planes in active flight on a whim. An easy analogy to this situation is the military; another responsibility largely belonging to the executive branch. Let us pretend a Federal District judge rules that the Administration sent an aircraft carrier through a contentious strait using money not allocated for such a purpose. The judge should not be allowed to order the carrier to drop anchor in the strait until proper funds are allocated. That would both pose a danger to the ship and her crew, and be a dangerous overreach of the judiciary into the role of the executive and President as Commander-in-Chief of the Armed Forces. Instead, what should happen in that scenario is what should have happened in this case—from the Government’s perspective: the judge should issue and sign a written order explaining his legal rationale, and what the Government should do from this point forward to cooperate with his order.
The judge, I am sure, sees things differently.
In his estimation, what likely really happened was he specifically ordered the flight be turned around while court was in session and he was on the record. He then wrote a follow-on order, detailing that no other flights should be sent out under the Alien Enemies Act, expecting that his original order would be followed. It would be reasonable to assume that original order would be followed because—again, by his estimation—it would be common sense for the Government’s attorneys to look at the oral order he gave and give it the same effect as the written one. It would be common sensical because the Government’s attorneys should have understood that it takes time for a written order to be produced by a federal judge; they are busy people, after all, and this case was likely not the only one docketed for the day. Thus, by the time the written order was produced, it would have been too late to turn around the plane, which is why the judge ordered it orally. Besides this, there is strong precedent for a judge’s verbal orders being followed. In judge-alone criminal and civil cases, when the judge delivers his verdict, it is assumed that his decision has been made. The parties do not sit around twiddling their thumbs waiting for the written verdict before preparing for their next action, such as appeal.
So, both sides have an argument to make, and both are likely going to depend upon petitions to “common sense” and precedent to further their respective arguments upon appeal.[2] Given that, all we are left with is to figure out what happens if the Government wins the day.
We do not really have to think hard about the outcome the other way, because if the judge is found on appeal to have issued a lawful order to the Government, and the Government is found to have violated that order, then things will likely proceed as they normally have for much of American juridical history: there will be some censure or other penalty for the Government’s contempt of the court, a fine will be paid, and life will move on. Unfortunately, for the illegal immigrants sent to El Salvador, none of this will do them much good. Despite the lofty powers granted them in the United States, American judges do have limitations, and one of those is the border of another sovereign nation. Thus, it is unlikely the deportees will be allowed to return, given President Bukele’s desire to remain in the good graces of the Trump Administration, as well as his administration’s own strong stance on law and order.
However, if this goes the other way—that is, if the appellate courts find in favor of the Trump Administration’s interpretation of events as laid out above—then things become more interesting. This is because if the courts appear to side with Trump, it raises the question: do they really agree with him, or are they bending the knee?[3]
Admittedly, this is an unfair position to put both the courts and the Trump Administration in; sort of a “heads-I-win, tails-you-lose” situation. For the courts, whose job it is to remain politically neutral, if they do not go along with Trump, that will be seen by many in the mainstream media as a rebuke of Trump’s policies, i.e., inherently political. However, if the courts do go along, then there will be howls by that same media that the judiciary has enabled authoritarianism.
Regardless, American politics are not nuanced. We have a two-party system because we enjoy simplicity. Black/white, right/wrong, Democrat/Republican. So, whether it is fair or not, these are the narratives that will emerge following the court’s decision. But, as noted moments ago, the more interesting of these narratives is definitely the latter. That is because it could potentially be true. An analogy to this situation would be the “switch in time that saved the nine” in 1937. During the Great Depression, President Roosevelt enacted many programs to provide relief and jobs to the American people. However noble his intentions, the Supreme Court routinely swatted down his efforts as unconstitutional. That is, until he began threatening to pack the Supreme Court. Then, miraculously, the Supreme Court suddenly uncovered a secret Constitution within the current one that allowed the President to move forward with his remaining relief policies.
The sad fact of the matter is that the Supreme Court, and lawyers as a whole, only have power as long as the executive allows them to. This has been true throughout history. Near the end of its time as a republic, the Roman Empire’s Pompey was quoted as saying: “Cease quoting laws to us that have swords girt about us!” Without swords, the law is useless. In 1937, seeing that they were about to lose the executive branch’s support—and thus, the swords—the Supreme Court switched their interpretation of the Constitution to maintain their relevance.
Here, the same scenario may play out. While President Trump has not threatened to pack the Supreme Court like the Democrats did a couple years ago, he has begun threatening to impeach the District Court judge in this case. Impeachment of a federal judge is a powerful tool that has only been successfully utilized eight times in our nation’s history. However, President Trump is not one to adhere to political norms, and it would be shocking if he did here.
With that in mind, and the safety of their seats in jeopardy, the courts who review the verbal order by the judge in this case may very well, like the Supreme Court in 1937, make a switch of their opinion just in time; only this time, rather than saving “the nine,” they will be saving themselves.
[1] The reader will notice I use “the Government” and “the Trump Administration” interchangeably.
[2] I understand the judge in this case will not be making an argument on appeal, as he is not one of the parties. However, it is clear that it is the judge’s reputation and pride at stake when the appeal is inevitably made in the near-future by either the Government or Opposing Counsel.
[3] The reader will notice I use the term “the courts” often from here-on-out. This is due to the fact we do not know where this case will ultimately end up. Common sense may at first suggest the Supreme Court—President Trump does enjoy getting on to their “Emergency Docket” to look at injunctions against his policies quickly. However, this may stop at the circuit level, and in fact will stop there if the Supreme Court refuses to grant a writ of certiorari. So, for simplicity’s sake, I will refer to all appellate courts as “the courts” from this point on.
The Crossroads Commentary 
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