Why “Constitutional Crisis” Fails to Capture Trump’s Attack on the Rule of Law

Since Donald Trump took office, on January 20th, his Administration has slow-walked or outright failed to comply with court orders related to a range of issues, most notably immigration and government funding. I recently spoke by phone with Samuel R. Bagenstos, a professor of law at the University of Michigan and a former general counsel to the Department of Health and Human Services in the Biden Administration. The goal was to go through some of these cases to understand why legal experts are so concerned, and whether there is a larger strategy to the Administration’s behavior. During our conversation, which has been edited for length and clarity, we also discussed the problem with the phrase “constitutional crisis,” whether bureaucratic incompetence could really be the reason for some of Trump’s actions, and why the past two months have been so unprecedented in American history.

Are we living through a constitutional crisis, or do you feel like we’re still some distance away from one?

I really hate the significance that’s being put on the phrase “constitutional crisis.” We are living through a massive assault on basic premises of our constitutional system. It’s been brewing for a long time, but it’s been acute for the last two months. Call that a crisis or not, but either way we are in deep, deep trouble.

Why don’t you like the phrase?

It has so many potential meanings. A constitutional crisis could be something that is a very discrete event, where two branches of government stare each other in the face in what looks like a standoff, and then they eventually resolve it. Or a constitutional crisis could be, Wow, it looks like basic building blocks of our constitutional system are about to go away. I think we’re much more in that second mode here. The phrase suggests that once you cross a certain point, something bad is going to happen that didn’t happen before. And so everybody starts asking, Well, have we crossed it yet? If the President is winking at court orders but not really defying them, is that enough? If the President is defying district-court orders but not the Supreme Court, is that enough? And I think that’s sort of a fool’s game. I’d rather just focus on what the President is doing.

Why does this seem to you more about the basic building blocks of our constitutional system going away, as opposed to two branches—in this case the judiciary and the executive—facing off?

I think it’s more than just the President facing off against the judiciary. We have to look at what all these disputes are about. How did these cases get into court in the first place? We have a President who has made very clear that he believes he has the prerogative to pick and choose what laws passed by Congress he has to follow. And so to me that’s the first and most fundamental challenge to our constitutional order here. All of these cases are about laws Congress has passed. Congress passed laws appropriating money for particular purposes. Congress passed laws creating certain agencies. Congress passed laws creating processes for dealing with immigration. And the President just doesn’t want to follow them. That’s why he’s been brought to court.

The President and his people have been very overt about their belief that they don’t have to follow the laws Congress has passed. Now we’re getting to a point where Trump and Musk and the people in this Administration are suggesting that they might not be bound by the courts holding them to those laws. I think that compounds the problem—I don’t think that is the problem itself. I think that’s a symptom that makes it worse.

The case that’s received the most attention is about a group of Venezuelan men who were flown to El Salvador last week, in violation of a judge’s order. It appears that one of the three planes had not left when the judge ordered that the government not deport these men, at least temporarily. Have you heard anything specific from the Administration in their defense of their behavior that makes you think this was something other than defiance of a court order?

No, I have not.

They have said that they weren’t told in time. They’ve said that some of the planes were over international waters. They have said that the judge’s order that the planes be turned around was verbal, not written.

When you look at the submissions that the Department of Justice has made in defense of what happened here, you see two things. You see a series of arguments that this really wasn’t a violation of the order. And I think that’s important—that the Trump Administration has consistently acted at least under the pretense that they are trying to comply with all of these court orders. But then it’s surrounded by a whole bunch of language and rhetoric that strongly suggests that they don’t believe the courts have power to act in these cases.

They’re basically saying, Look, we have a bunch of arguments, however implausible, that we were complying, but, anyway, you don’t want to push this, judge, because we don’t really think you have the power here. It’s a way of trying to get some leverage in what really feels like a negotiation with the court. That’s one way to think about these arguments: they’re not necessarily being offered in the sense that this court or any other court would really believe them, so much as this gives them a way to say they’re complying while also telling the court that you better not push us.

Now what are the arguments they’ve made? The argument that the planes were in international waters—well, the planes have radios. Obviously, if the President or the people who the pilots answer to told them to turn the planes around, they would have turned the planes around. The people making that decision were within the United States, and within the jurisdiction of the court. The idea that the planes were outside of U.S. airspace, and therefore they couldn’t do anything about it, that’s just laughable on its face.

It also appears that these planes may have taken off during the hearing. And certainly when I was working in the government—and I worked in three Presidential Administrations, during which I worked in or very closely with the Department of Justice—we would never have come close to trying to moot a pending hearing before a judge, to take a judge’s jurisdiction away by trying to get planes in the air before the hearing started or certainly before it ended. Secondly, the fact that they’re making the argument shows a lack of respect for the judicial system and a lack of willingness to submit to judicial review of their actions.

As for the oral order and not the written order of the court, well, this was an emergency situation. It was a hearing that was called precisely because there was a real worry that the Administration would try to deprive the court of jurisdiction. And so what the judge said very clearly in the hearing was that you have to make sure those planes turn around if there are any planes in the air. That was clearly communicated to the Department of Justice, which represents the Administration here. The minute written order was just a summary of what had happened orally. That’s what so-called minute orders are. That’s the difference between a minute order and a fully fleshed out order that stands on its own. The fact that not every word the judge said in the hearing was reflected in the minute order doesn’t mean he was somehow implicitly taking back what he said.

I had asked another lawyer about this question of moving ahead with your plans before a court date, and he said that, until there’s a temporary restraining order telling you that you can’t do it, it’s relatively normal for governments to keep doing what they are doing. Is that not your understanding, though?