MARY LOUISE KELLY, HOST:
A cartoon this week in The New Yorker magazine shows a reporter standing before the steps of the Supreme Court. Into her microphone, she intones, today, the Supreme Court is expected to rule in the case of People v. Guy Who Will Ignore The Ruling. Like all political cartoons, this one is designed to capture a moment. And the moment in which we find ourselves presents a mounting number of legal cases where the Trump administration appears to be avoiding or ignoring court orders.
I want to focus now on two of them. Both relate to immigration policy. One involves Trump's use of the Alien Enemies Act, the 18th-century wartime law to deport migrants without due process to a megaprison in El Salvador. The other involves another person deported to that prison, Kilmar Abrego Garcia, who the government admits was wrongfully deported and is now refusing to retrieve for the hearing that the U.S. Supreme Court says he is owed. So he and all the others remain in El Salvador. Well, let's turn to someone to help us make sense of this - Amanda Frost, law professor at the University of Virginia. Amanda Frost, welcome back.
AMANDA FROST: Thank you.
KELLY: First, the case involving the Alien Enemies Act - this week, Judge James Boasberg ruled that there is, and I quote, "probable cause to find the Trump administration in criminal contempt" for violating his orders last month. What would that mean exactly, to be held in criminal contempt?
FROST: Yeah. So criminal contempt is the power that all courts have to hold the lawyers in front of it in contempt - that means to fine them or even imprison them - if they've lied to the court, if they've refused to follow its orders or violated its orders. Judge Boasberg, in a 46-page opinion, laid out very clearly all of the ways in which the executive branch and the lawyers before him mischaracterized, obfuscated and raised frivolous, meritless arguments to avoid his court order, which would have prevented these men from being wrongfully and illegally deported.
KELLY: The Supreme Court has also ruled on this case and in a way that I have seen described as a win for the Trump administration and simultaneously a rebuke to the Trump administration. Explain.
FROST: Yes. The Supreme Court's decision was deeply frustrating for those who, like myself, feel these men were deported in violation of the Constitution and federal law. The Supreme Court said, yes, they have a right to notice and due process, which was violated in this case. That is such an important statement because, of course, the Trump administration was claiming they had no such right. But at the same time, the Supreme Court said, but they litigated in the wrong forum. They have to start again. They have to bring it in a different jurisdiction. That is extremely frustrating for the rule of law and for the rights of these men and future people who may be wrongfully deported.
KELLY: The second case I mentioned - this was also this week - Judge Paula Xinis announced a two-week expedited discovery over the Trump administration's refusal to return Kilmar Abrego Garcia to the U.S. The Trump administration appealed. A federal appeals court has now denied that appeal. It's a lot to keep up with. Legally, where does it leave us?
FROST: Yeah. So I'll just start with the fact that Abrego Garcia was wrongfully deported, as the government concedes. He had a court order allowing him to stay in the United States. The government's view is, despite the error, they have no obligation to return him. Of course, Judge Xinis ruled against that position, said, yes, you do. You must facilitate and effectuate the return. The Supreme Court then backed her up, but I would have to say weakly. They said, yes, government, you must try to return him. But they didn't use the strong and clear language she used, and the government is now taking advantage of the leeway the Supreme Court gave them to do, at this point, nothing. And Judge Xinis has responded by pushing this forward with a two-week investigation as to what the government is doing.
KELLY: So let me focus us on the Supreme Court. I'm listening to the language you are using in describing the Supreme Court's recent actions. You have called them deeply frustrating. You've said they moved weakly. It sounds as though they are issuing rulings that are so carefully worded that they tiptoe up to wishy-washy.
FROST: Yeah. I think wishy-washy is the right word. And if the Supreme Court spoke clearly and firmly, then in cases where the law is crystal clear, as with Abrego Garcia, who was wrongfully removed in the government's own admission, then I think we could see a response. President Trump said, if the Supreme Court orders him returned, I will do it. And then the Supreme Court issues a weak order that I think suggests it's now afraid of the constitutional crisis that would come if the Trump administration were to ignore its rulings.
KELLY: Amanda Frost, we have interviewed you twice in the last two months, and both times, we have asked whether, with the executive branch appearing to ignore the judicial branch, are we in a constitutional crisis? Listening to you, it sounds like you see this more as a Supreme Court crisis right now than a constitutional crisis.
FROST: I think that's right. When we spoke before, I defined the constitutional crisis or what one would be, would be an open flouting of the orders of the highest court in the land, would be, no, we do not have to follow the Supreme Court's rulings. This administration isn't saying that, and it actually doesn't need to say that in light of the frustratingly weak Supreme Court rulings. What it is doing is making a mockery of the judicial process by returning to the lower courts and obfuscating, mischaracterizing and making frivolous and meritless arguments before those courts in ways that suggest that it doesn't need to openly flout orders as long as it can get away with this kind of misbehavior.
KELLY: For the migrants who are now sitting in a prison in El Salvador without due process, does the distinction between a constitutional crisis and a Supreme Court crisis matter?
FROST: No. For them, the result is the same. And I think it's worth adding here that they're the tip of the iceberg. We have the migrants that the president said it could deport without due process in violation now, clearly, of what all agree the law is. Then we have an individual wrongly deported, and then we have a president saying he can deport citizens that he plans to look into deporting homegrown Americans, as he puts it. So there's no endpoint to the president's claim to be able to have unilateral power to remove people from the United States of America without due process.
KELLY: Amanda Frost is a professor at the University of Virginia specializing in immigration and citizenship law. Amanda Frost, thank you.
FROST: Thank you. Transcript provided by NPR, Copyright NPR.
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