Maundy Thurdsay, 2025
And what the US government should realise about a cavalier approach to obligations
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At the beginning of the current constitutional crisis in the United States there was a word, and that word was “Oopsie”.
This was a word in the social media post of the El Salvador president when the first deportations took place from the United States.
This was then re-posted by the actual United States Secretary of State from his personal account.
This re-post signified that at the top of the United States executive there was not only a lack of seriousness about court orders but a willingness to show that lack of seriousness publicly.
And it was that moment that it became plain that there was not only a tension but a contradiction between the attitudes of the executive and the judges.
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Others may date or time the crisis from another starting point – there is no great science in this, and different people can have different views. Just like different people can have a view on when a storm starts, though there will be a point where most people would agree when a storm is happening.
Most people, who have an opinion about such things, would probably accept there is now a crisis in the constitutional arrangements of the United States.
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Of course, the United States government has not publicly said “we are not acting constitutionally”.
As the eminent jurist Mandy Rice-Davies might have put it: they wouldn’t do, would they.
It is instead for those involved and looking on to assess whether certain conduct is constitutional, or not – and whether there is a constitutional crisis, or not.
And from the perspective of this English constitutional law blog there is now not only a crisis, but a crisis which is intensifying.
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There are broadly two strands to the current crisis in respect of the deportations to El Salvador. In general terms they can be seen as the internal and external strands.
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The internal strand is about the compliance of the United States government with the order of the federal court that the planes should have turned round at the time of the initial restraining orders.
Although the government has successfully appealed whether those orders were appropriate – and that a different legal remedy should have been used – the temporary restraining orders still should have been complied with.
In the United States as in the United Kingdom the orders of the court are to be complied with, regardless of whether the party affected thinks they are wrong or unlawful.
The judge dealing with this case has now stated that there is probable cause to show that the United States government was in contempt of the court in refusing to turn the planes around.
The executive must now either “purge” (wonderful word) their contempt or provide information, which may in turn lead to sanctions.
At this stage it does not seem clear whether any sanction – if it is for criminal contempt – is within the scope of things that can be pardoned by a president.
Few if any have a good idea of what will happen next.
And as this blog has averred before, that is in the nature of crises: if one can forecast what will happen next then it is not a crisis.
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The second strand is about the case of one particular individual, Abrego Garcia, who was wrongly and unlawfully deported to El Salvador.
He is now in the infamous mega-prison.
The United States say that it is not within its power to order his return, as he is now outwith the jurisdiction.
El Salvador say that they do not have the legal power to insist that the United States accept his return.
In a strict, narrow technical sense, both these propositions are probably correct – and, if so, that is intentional.
It seems the whole arrangement has been engineered – indeed gamed – so that the unfortunate individuals fall between two jurisdictional stools.
But a federal court has ordered that the United States “facilitate” his return, and this order has been unanimously approved by the Supreme Court.
This blog has already explored the issues about such injunctions generally – and what the word “facilitate” would mean in particular.
Yet whatever the word means in this context, it must mean something.
The United States government, however, ain’t doing nothing.
Even if (somehow) there is no formal mechanism in the agreement with El Salvador for the return of individuals (and the government are refusing to disclose this “classified” agreement), few would doubt that a formal request could be made and an offer of assistance made.
But the government is instead coming up with increasingly implausible definitions of “facilitate”.
Again, as with the internal strand, it is not clear what will now happen and how this matter will now unfold.
And again, that is because the United States is in a constitutional crisis.
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Crises – constitutional or otherwise – are not necessarily dramatic, at least not immediately.
The effects of a crisis can be profound but quiet: a general dislocation leading to unpleasant ongoing consequences.
So there may not be grand gestures and civil unrest and conflict (though there can be). But there will be destabilisation, of one kind or another.
And that destabilisation may not be that which the government is hoping for.
The United States government should bear in mind one thing about being cavalier in its attitude to the constitution.
Such an attitude did not end well for the cavaliers.
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The normal response to a serious and continuing contempt of court would be a sentence of immediate imprisonment. Does the presidential power of pardon cover that? It would be good to have a view.
How far has the USA sunk that we are even considering this? So sad.
Assuming that the court is a Federal one, the president could offer an immediate pardon to anyone sanctioned. The “correct” response to that subversion of the rule of law would be for the House to them impeach the president. However, no one seriously believes that no matter what the president does, they will impeach.
The essence of the Trump administration’s approach is that it is possible, nay desirable, to pick and choose which laws you will follow and which you will ignore. And, of course that is easier to do if you are in a position of power, or well connected with those who have influence. In truth, law is for other, little people.
It looks as though the only way to bring home the sheer madness of this to ordinary citizens, is for ‘pick and choose’ to become default for everyone. If I don’t want to abide by a law, or a contract, why should I? If you don’t like what I have done, tough!
It’s easy to see how this will end at best in chaos, at worst in loss of life.
While the US government no longer seems to be capable of shame on moral grounds, the flight of investment based on a lack of legal commitment to contracts or judicial oversight will surely send powerful interests into even more of a panic over their personal fortunes.
I was wondering about that too, yesterday, and it turns out there is indeed precedent that says that a criminal concept is an offence against the United States in the sense of the pardon clause.
The case is Ex parte Grossman, 267 U.S. 87, 122 (1925), though in the previous case of The Laura, 114 U.S. 411, 413 (1885), the Supreme Court has also said (arguably obiter) that the President cannot isolate a person against all consequences of contempt.
See the text accompanying footnotes 13 and 14 here: https://constitution.congress.gov/browse/essay/artII-S2-C1-3-1/ALDE_00013316/
I think that’s right: there has been apparently informed discussion on the web about the power of pardon, and the consensus seemed to be that the President has the power to pardon criminal contempt but not the power to pardon civil contempt (since that is not a criminal offense, just the power of the judiciary to coerce a party to act in accordance with a judgment, such as a fine or even imprisonment until the contempt is purged).
What has yet to happen, but may yet, is a judge finding the administration in civil contempt for failing to act, such as for failing to facilitate the return of Garcia Abrego from El Salvador.
When established contractual norms are ignored there are usually consequences. Sometimes those consequences take a while to be evident.
In a crisis, it is difficult to predict what will happen next, but I have nothing to lose by sharing one prediction. As soon as I heard about the possibility of Trump officials facing charges of criminal contempt, I anticipated that Trump’s next move will be to use his power of pardon. The Supreme Court already came close to saying that Nixon was actually right, and if the president does it, it isn’t criminal, and I think Trump wants the world to see that this also applies to all the president’s men.
And if the Supreme Court shows signs of having second thoughts, he will sack them, using other powers than those conferred upon him by the Constitution. Whether they will then end up in a Salvadorean gaol remains to be seen.
Thanks as ever for your clear analysis, David. Both the internal and external strands are alarming now, but all we can do from here is watch and see what happens.
I am glad to see that in the meantime you are going to allow yourself some well-earned time off over Easter. I hope you do many lovely and restorative things! All the best.
But the government is instead coming up with increasingly implausible definitions of “facilitate”.
A short excerpt from Through the Looking Glass. Chapter 6.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
Naomi Klein’s book “The Shock Doctrine” was published in 2007. She noted that Milton Friedman was economic advisor to General Pinochet of Chile and adopted the expression “economic shock treatment” to describe his recipe for economic reform. The key element of its implementation was speed, giving the public no time to assimilate the violence of the coup before they were hit with blow after blow in the form of changes to the social and economic order. Shock and Awe also became the label proudly placed by the U.S. government on their Iraq invasion.
The pedigree of this proceeding is traced by Klein all the way back to the experiments in electro-convulsion techniques conducted in the early 1950s by Dr. Ewen Cameron of McGill University, Montreal. His ambition was to eradicate the subject’s personality and supposedly substitute a better one. The subjects were psychiatric patients. They did not give informed consent.
The game “The Prisoner’s Dilemma” conveys an implication that the best way to re-establish equilibrium in social relationships is to apply the principle of “tit for tat”, neither more nor less. It may be that the only way to put an end to the current nightmare is to administer to Trump and his confederates a counter-shock commensurate with the totality of the shocks they have so far inflicted on their own people. I almost shudder to think of the immensity of it. But if it doesn’t include a bloody civil war, I will count that a bonus.