Failing to Rise to the Constitutional Crisis

Ari Paul

The Trump administration maintains that it can send people to overseas concentration camps with impunity  because "activist judges do not have the jurisdiction to seize control of the president's authority to conduct foreign policy" (BBC, 4/11/25).

As the Trump administration openly defies court orders to return a man wrongfully deported to a notorious mega-prison in El Salvador, some American outlets are underplaying the significance of this constitutional crisis.

In a unanimous decision the Supreme Court “declined to block a lower court's order to ‘facilitate’ bringing back Kilmar Ábrego García,” a Salvadoran who had legal protections in the United States and was wrongfully sent to El Salvador’s Terrorism Confinement Center, or CECOT (BBC, 4/11/25).

The White House is not complying (Democracy Docket, 4/14/25). “The federal courts have no authority to direct the executive branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner,” Trump's Justice Department insists (CNN, 4/15/25). Fox News (4/16/25) said of Attorney General Pam Bondi: “Bondi Defiant, Says Ábrego García Will Stay in El Salvador ‘End of the Story.’”

In an X post (4/15/25) filled with unproven assertions that skirt the question of due process and extraordinary rendition, Vice President J.D. Vance said, “The entire American media and left-wing industrial complex has decided the most important issue today is that the Trump admin deported an MS-13 gang member (and illegal alien).” (Are we supposed to believe that the six conservatives on the Supreme Court, three of whom were appointed by Trump, are a part of the “left-wing industrial complex?”)

The complete disregard to constitutional protections of due process and to court orders should send alarm bells throughout American society. The MAGA movement condones sending unconvicted migrants to a foreign hellhole largely on grounds that they are not US citizens, and thus don’t have a right to constitutional due process. But the administration has floated the idea of doing the same thing to "homegrown" undesirables as well (Al Jazeera, 4/15/25).

'An uncertain end'

The New York Times (4/15/25) goes out on a limb and declares that the president defying the Supreme Court is "a path with an uncertain end."

The case is quite obviously not about the extremity or unpopularity of President Donald Trump’s policies, but a breaking point at which the executive branch has left the democratic confines of the Constitution, as many journalists and scholars have warned about. But the case is not necessarily being portrayed that way in the establishment press.

In an article about the Trump administration’s record of resisting court orders, a New York Times subhead (4/15/25) read, “Scholars say that the Trump administration is now flirting with lawless defiance of court orders, a path with an uncertain end.” In an article about "What to Know About the Mistaken Deportation of a Maryland Man to El Salvador" (4/14/25), reporter Alan Feuer described the Supreme Court's upholding the order to "facilitate" the return of Ábrego García as "complicated and rather ambiguous" rather than a "clear victory for the administration."

At the Washington Post (4/14/25), law professor Stuart Banner wrote an opinion piece saying that fears of a constitutional crisis were overblown, noting that while Trump is “famous for his contemptuous remarks about judges…tension between the president and the Supreme Court is centuries old.” Thus he said, there are incentives in both branches to “not to let conflict ripen into public defiance.”

The Wall Street Journal (4/15/25) presents the prospect of the White House defying a Supreme Court order as a "showdown" that Trump might "win."

The Wall Street Journal editorial board (4/15/25) said:

Mr. Trump would be wise to settle all of this by quietly asking Mr. Bukele to return Mr. Ábrego García, who has a family in the US. But the president may be bloody-minded enough that he wants to show the judiciary who’s boss. If this case does become a judicial showdown, Mr. Trump may assert his Article II powers not to return Mr. Ábrego García, and the Supreme Court will be reluctant to disagree.

But Mr. Trump would be smarter to play the long game. He has many, much bigger issues than the fate of one man that will come before the Supreme Court. By taunting the judiciary in this manner, he is inviting a rebuke on cases that carry far greater stakes.

These articles display a naivete about the current moment. The Trump administration and its allies have flatly declared that they believe a judicial check on the executive authority wrongly places constitutional restraints on Trump’s desires (New York Times, 3/19/25; Guardian, 3/22/25).

House Speaker Mike Johnson, responding to court rulings that went against MAGA desires, “warned that Congress’ authority over the federal judiciary includes the power to eliminate entire district courts,” Reuters (3/25/25) reported. The House also approved legislation, along party lines, that “limits the authority of federal district judges to issue nationwide orders, as Republicans react to several court rulings against the Trump administration” (AP, 4/9/25).

In other words, Trump’s defiance of the courts is part of a broader campaign to assert that the Constitution simply should not be an impediment to his rule. That’s not a liberal versus conservative debate about national policy, but a declaration that the United States will no longer operate as a constitutional republic.

'Constitutional crisis is here'

"Think long and hard about what it means to have a president who gleefully ignores the courts," urges Rex Huppke (USA Today, 4/15/25). "It's time to stand up and shout 'Hell no!' right freakin’ now, and not a moment later."

Pieces like the ones at the Journal, Times and Post give readers the sense that this affair is just another quirk of the American system of checks and balances, when, in fact, history could look back and declare this the moment when the Constitution became a dead letter.

Other outlets, however, appeared to appreciate the gravity of the situation. “America Is Dangerously Close to Being Run by a King Who Answers to No One” was the headline of Rex Huppke column at USA Today (4/15/25). “The Constitutional Crisis Is Here” was the headline of a recent piece by Adam Serwer at the Atlantic (4/14/25).

This case will roil on, and both the judicial system (Reuters, 4/15/25) and congressmembers (NBC News, 4/16/25) are taking action. There’s still time for the papers to treat this case with the urgency that it deserves.