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

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’.

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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:

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.

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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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