“Oopsie” – the word that means the United States has now tipped into a constitutional crisis

17th March 2025

The United States federal government disregards a court order and jokes about it on social media

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In the beginning was a word, and that word was “Oopsie”.

It was a word posted on social media yesterday in the name of the President of El Salvador:

This was then re-posted by the social media account of the United States Secretary of State Marco Rubio (though from his political account, not his official account):

Why is this posted word so significant that it signals a constitutional crisis is now happening?

Well.

The reason is about court orders, and about the response to court orders by the federal government.

Disagreements between the executive and the courts are not, by themselves a crisis. They are tensions. And constitutions exist so as to regulate and resolve those tensions. That is what constitutions do.

And loud shouts and boasts and threats by the executive about what they will do with the courts are also not by themselves a crisis, though they may well be dramatic. Such bluster can be accompanied by the quiet compliance with court orders, and the noise is just for the claps and cheers of supporters.

Where such tension and drama flips into a crisis is when there is is open, seemingly inconsequential defiance of court orders by the executive.

That means the constitution can no longer do its its job of regulating and resolving tensions between the executive and the courts, for that role presupposes that the executive will comply with unwelcome court orders until and unless those orders are set aside.

Once court orders are freely ignored by the executive, it is a form of constitutional ‘game over’.

GAME OVER graph from video game

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In this case, there are newspaper reports that there was an order by a federal court that the relevant flights deporting individuals should return.

From the BBC:

A federal judge has stopped US President Donald Trump from using a 227-year-old law meant to protect the US during wartime to carry out mass deportations of Venezuelans. Trump proclaimed on Saturday that immigrants belonging to the Venezuelan crime gang Tren de Aragua were "conducting irregular warfare" against the US and that he would deport them under the Alien Enemies Act of 1798. But US District Judge James Boasberg that same evening ordered a halt to deportations covered by the proclamation lasting for 14 days, according to media reports. Judge Boasberg told a hearing he had heard planes with deportees were taking off and ordered them turned back, the Washington Post reported.

The federal government knew about this reported court order.

The federal government ignored this reported court order.

The Secretary of State himself effectively laughed and giggled on social media about ignoring this reported court order.

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There were some early half-hearted attempts of trying to say the federal government had not brazenly defied a court order.

Perhaps it was a question of timing and the order was given too late and so had no effect.

Or perhaps there was a legal basis for the deportations outwith the court order and so there was no breach.

And indeed, if this is litigated we may see if there may be some force to these counterpoints.

But.

That was not the attitude of the White House – at least according to reports.

According to the Axios news site:

“The Trump administration says it ignored a Saturday court order to turn around two planeloads of alleged Venezuelan gang members because the flights were over international waters and therefore the ruling didn’t apply, two senior officials tell Axios. […]

“Inside the White House, officials discussed whether to order the planes to turn around. On advice from a team of administration lawyers, the administration pressed ahead.

“There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” the senior official said.

“They were already outside of US airspace. We believe the order is not applicable,” a second senior administration official told Axios.”

According the same new report, the White House press secretary then released this statement:

“The Administration did not ‘refuse to comply’ with a court order. The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory.

“The written order and the Administration’s actions do not conflict. Moreover, as the Supreme Court has repeatedly made clear — federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion,”

“A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.”

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The White House is thereby publicly still asserting that they did not breach a court order. They are maintaining that the court order was either invalid or did not apply.

Of course, in the words of the eminent jurist Mandy Rice-Davies, they would say that wouldn’t they.

But the things is that until or unless a court order is discharged, it stands.

If the federal government genuinely believed the federal court order was invalid then the correct route was to appeal it – and to abide with it in the meantime.

The federal government does not (and should not) get to gainsay whether the court is acting inside or outside its jurisdiction or has made some legal error. That is for a superior court, and not for internal White House lawyers and press spokespeople to take upon themselves.

Even taking what the White House is saying at its highest, they are still acting unconstitutionally.

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And, in any case it would appear that the “international waters” and the “already been removed from U.S. territory” lines are hogwash.

An obligation to comply with the order of the court attaches itself to the person of the defendant, not to where the defendant is performing its action or inaction.

(Note here I am not an American lawyer, but it would appear that this fundamental point is the position of American law too.)

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What happens next?

Well that is the thing about a genuine constitutional crisis. Nobody knows what will happen next – not the federal government, not the courts, not the pundits.

For that is the nature of a crisis.

If an outcome of all this was foreseeable, let alone certain, then it would not be a crisis.

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There is this fascinating and informative article about how the courts may deputise their own marshals to enforce contempt rulings, if the federally employed marshal service refuses to execute court orders.

Reading that article evokes thoughts about those Western films where a new sheriff in town has to resort to deputising the good town folk as sheriffs against the baddies.

It is a remarkable prospect – and it is remarkable that we are even asking questions like this, let alone people having to set out such detailed possible answers.

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But whatever does happen next may not necessarily itself be dramatic.

Some crises are quiet or even silent to begin with, with only their effects manifesting later on.

Like an apparent bomb under the table in, say, an Alfred Hitchcock film, there may or may not be an explosion, which may be sooner rather than later.

Nobody knows.

*

What we do know is that the United States government is now picking and choosing whether to comply with court orders.

And when they do not comply, they do not seem to care and even seem to be laughing about it on social media.

In contrast, in the United Kingdom, there was a recent (2021) supreme court judgment (which I wrote about here) which said it was never for the government to pick and choose which court orders to comply with.

The United States government plainly do not think that is the legal position there – and they seem confident that if litigates a majority of the United States supreme court will support them.

One hopes that confidence is misplaced: Justices Roberts and Barrett may again show their independence of mind. But then again, they may not.

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So what we have is a situation the outcome of which cannot be predicated, where the United States government nonchalantly says it can can select which court orders to comply with.

Americans now thereby face a federal government practically free from constitutional checks and balances in the exercise of its brute, coercive force.

If a judge goes against the federal government, all they will say is that the judge is wrong and carry on regardless, retweeting “Oopsie” as they go.

Brace, brace.

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13 thoughts on ““Oopsie” – the word that means the United States has now tipped into a constitutional crisis”

  1. As a dual US-UK national living in the UK, I find the Trump Administration’s defiance of this court order terrifying. It is clear we are on a trajectory towards an autocracy if not a full-blown dictatorship. We urgently need a legal resistance.

    1. I am not sure what “legal resistance” looks like in a country where the rule of law appears to have broken down.

  2. It was only a matter of time. I knew this would happen sooner or later, and probably sooner.

    You write: “The United States government plainly do not think that is the legal position there – and they seem confident that if litigates a majority of the United States supreme court will support them.”

    I’m not sure that matters any more. He would brazenly ignore a Supreme Court ruling that he didn’t like and attack the majority as traitors. He would probably try to get one or more of them impeached.

    There’s nothing the Supreme Court can do when Trump has both chambers of Congress. The executive enforces court rulings, and if they refuse and Congress goes along with it, then what? Court appointed marshals? That’s a laugh. That wouldn’t work.

    Taken to its logical conclusion, assuming midterm elections do not shake things up to a sufficient extent, the 22nd Amendment would not preclude Trump from running again in 2028, nor would it not preclude the Republican Party making him their nominee. I’m not sure whether it would prevent him being on the ballot. I’m not sure that would matter. None of this fancy stuff works unless the people are sufficiently exercised and outraged.

    He could win, and if he did win and Congress certified it, then what? A justice is meant to swear him in. Maybe one of them would. Maybe not. Maybe it doesn’t matter. By that time, what does? Welcome to Project 2025.

    1. See what I mean? This is what it’s like now. Is anyone going to halt this trajectory?

      https://www.theregister.com/2025/03/14/government_jobs_ruling/

      —-%<—-
      A single judge is attempting to unconstitutionally seize the power of hiring and firing from the Executive Branch," a spokesperson for the administration said.

      "The President has the authority to exercise the power of the entire executive branch – singular district court judges cannot abuse the power of the entire judiciary to thwart the President’s agenda. If a federal district court judge would like executive powers, they can try and run for President themselves. The Trump administration will immediately fight back against this absurd and unconstitutional order.
      —-%<—-

  3. I’m no lawyer, but surely an aircraft under the control of a US citizen or authority can be considered subject to US laws? I believe that the US is not happy about its ships or aircraft being used for, for example, consumption of otherwise illegal drugs!

    And on another tack, if the US claims authority to tax its citizens anywhere in the world, it can also presumably instruct its direct employees and agents to comply with US court decisions.

    Perhaps others have a more informed and nuanced understanding of these issues.

  4. If someone deliberately and flagrantly ignores a court order, are they not at risk of a finding of contempt of court, with potential criminal sanctions? If I was the judge, I would be seeking to find out the name(s) of the individual(s) who decided to ignore the court order, so they could be summoned to explain themselves and potentially be sanctioned.

    But who enforces court orders anyway? Like paying taxes, there is usually voluntary compliance, but if enforcement is necessary, courts usually rely on other bodies – police, bailiffs, etc – to enforce their orders and any sanctions that attach to them. What if that lever is pulled, and nothing happens?

    If this stands, if the legislature looks away as the executive seizes their power to make the law and the judiciary’s power to interpret it, so much for the “co-equal” branches of government, and w(h)ither the rule of law in the US.

    Perhaps the only solution here is a political one. Congress could impeach Trump a third time, but if the House does approve articles of impeachment, there seems little prospect that the Senate as presently constituted would convict.

    It should be the 250th birthday of the United States next year. “A republic, if you can keep it.”

  5. It feels like a lifetime ago that you posted the aphorism ‘Constitutional matters should be dull’. A view that has since been challenged on an almost daily basis. I only have one question.
    Should we be revolting?

  6. The Hitchcock analogy seems very apt, in that 95% or more of the public are only going to see the metaphorical bomb go off.

    The 5% or so of us more aware of the events of the last month (my timeline starts with Vance’s Munich speech) have had to live in suspense of the bomb under the table since then.

  7. If thus case gets to the US Supreme Court and if it were to uphold the current Executive’s interpretation, how might that affect enforcement of US laws – including criminal ones – which apply to outside US borders?
    If that might be adversely, might that affect how a Supreme Court (apparently more than somewhat inclined to agree with the current Executive) would decide this case?

  8. The logic that worried me was that in using a law that seemed to presuppose use in wartime, that if used would be a on ‘wartime footing ‘ with any country receiving deportees

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