Play Chicken and Win
by Felipe De La Hoz
The unambiguous clarity of U.S. District Judge James Boasberg’s mid-March order for the Trump administration to turn back El Salvador-bound deportation flights—planes filled with people removed under an absurd Alien Enemies Act proclamation—only made Trump’s noncompliance that much more nakedly obvious.
The planes landed, the detainees were offloaded to indefinite and unlawful detention at the CECOT mega-prison, and Boasberg was furious enough to begin a rare contempt inquiry against federal officials. Briefly, it appeared that openly flouting a judicial order would bring about some real and tangible consequences for actual, individual officials, until the move was derailed by a Circuit panel, which has left the inquiry languishing for months in a way legal observers say is very unusual.
Throughout Trump’s lightning-speed power grab, loci of power like elite universities and law firms have often bent the knee, while alternative centers of government authority like courts and Congress have floundered. I recently wrote about how governors could use their power to directly constrain federal overreach, and my research left me with the conclusion that there is precedent and ability but not a ton of appetite for this approach. In just the past couple of months, for example, ICE officials have turned multiple congressmembers away from detention facilities and issued new guidance requiring advance notice of visits, in direct contravention of the plain language of the law.
A group of lawmakers have now filed suit challenging this plainly unlawful ICE policy, leaving a number of observers to wonder why the congressmembers—on paper, some of the most powerful and protected people in the nation—are not taking more direct and aggressive action. In response to a video of Reps. Dan Goldman and Jerry Nadler being denied access to a downtown Manhattan ICE facility by an official in a gaudy toucan shirt, journalist Hamilton Nolan mused, “It’s unclear to me why the U.S. Congressmen are not escorted by big armed cops to push through obstacles to them exercising their legal rights.”
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