A MARTÍNEZ, HOST:
A federal judge wants the Justice Department to explain its actions in deportations that took place over the weekend. The judge asked for a sworn declaration from the DOJ by noon today, detailing how planes carrying alleged Venezuelan gang members were flown from the U.S. to El Salvador despite a judge's orders to turn the planes around. A hearing yesterday saw a debate unfold about when exactly the orders were issued and whether they had to be in writing to restrain government actions. So what else can the judicial branch do if a judge believes the executive branch is ignoring an order? Let's ask Michael Waldman. He's a constitutional lawyer and the president of the Brennan Center for Justice. So, Michael, what evidence would demonstrate to a judge that the Trump administration ignored the court's order in this case?
MICHAEL WALDMAN: Well, for starters, when did the airplanes take off? It seems that they took off, at the very least, in the middle of the hearing. Did the administration choose to violate what was a very clear demand by the judge that the planes turn around? This is a major constitutional case. This involves a law that's only been used three times in the country's history. And this judge wants to make sure that it's the courts and not just people in the administration who decide what the law says.
MARTÍNEZ: Yeah, so we need to figure that out - right? - to be able to kind of pin it down. To me, it seems like that would be a little difficult.
WALDMAN: Well, yesterday in the hearing, the lawyer from the Justice Department basically stonewalled the judge. The president of El Salvador, which is the country where the people were deported to, issued a tweet, I believe, saying, oopsie...
MARTÍNEZ: Yeah.
WALDMAN: ...Too late (laughter). So there's quite a bit of impudence, where people are saying we don't really have to listen to the courts. It's very fact-based, and this is the kind of thing that eventually will head toward the Supreme Court, at the very least testing the power of courts to enforce the law.
MARTÍNEZ: So speaking of listening to courts, in terms of what a president can and can't do, let's listen to White House deputy chief of staff Stephen Miller talking to reporters yesterday.
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STEPHEN MILLER: The idea that a single district court judge has the authority to direct, as though they were the president, the movement of airplanes around the globe - it is the most outrageous thing I've seen from a district court judge in my lifetime but, frankly, going back multiple lifetimes.
MARTÍNEZ: So, Michael, what do you make of that? Does this judge have that authority?
WALDMAN: It looks like the judge does. Now, with Stephen Miller and other administration officials, we hear a lot of huffing and puffing about these meddling judges in their robes, you know, getting in our business. At the same time, the White House press secretary said, reassuringly, oh, of course we follow court orders. You know, they say that...
MARTÍNEZ: Well, Trump has said that. Trump has always said he follows court orders - that he can always appeal, but he follows court orders.
WALDMAN: And in his first term, he did. You know, in some ways, this is talking out of both sides of your mouth or, as they say, the definition of hypocrisy is - it's the tribute that vice pays to virtue. Ultimately, the big question will be - in our country, with our Constitution, presidents follow court orders. They do it unhappily very often, very grumpily, but they do. And the question here is, will they follow rulings by a court, or is this a collision toward a constitutional clash?
MARTÍNEZ: Now, the administration has also said that the judge's order was not enforceable because he delivered it verbally, not in writing. Does that matter at all?
WALDMAN: Most lawyers don't think that matters. The judge was quite clear. And what he asked the administration to do today was to put down in writing what they knew and when they knew it. He is - he's - the judge is ramping up the precision and the energy of his own orders.
MARTÍNEZ: Now, when it comes to options for a judge, what options does any judge have if they believe a president is ignoring its rulings?
WALDMAN: Judges do have options. They can hold any litigant, including government officials, in contempt. That is something where it can be civil contempt with fines and other things like that. It could even be criminal contempt, where sometimes people go to prison. If a - if someone refuses to cooperate, there are tools. One of the complications here is the U.S. Marshals, who actually enforce some of this stuff, work for the Justice Department. But the law says they have to follow the rulings of judges. And in fact, sometimes judges appoint private lawyers to prosecute cases if they can't get the government itself to do it.
Judges have some tools, but ultimately what will be the main tool is the recognition by this president and all presidents that the Constitution requires us to all follow the rule of law. Public opinion and the demands of history ultimately will be the most important and most effective remedy here.
MARTÍNEZ: All right. Michael Waldman is a constitutional lawyer and the president of the Brennan Center for Justice. Michael, thanks.
WALDMAN: Thank you. Transcript provided by NPR, Copyright NPR.
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