New Mexico constitutional law experts worried by Trump administration deportations

The Trump administration appears to have disregarded a federal judge’s order to delay deporting hundreds of immigrants to El Salvador Saturday, a move that concerns constitutional law experts in New Mexico.

The deportees were alleged Venezuelan gang members who the Trump administration tried to deport with the rarely used Alien Enemies Act, a centuries old wartime law last used for mass internment in the U.S. of people with Japanese ancestry during WWII. U.S. District Judge James Boasberg ordered the Trump administration to bring two flights carrying the deportees back to the U.S. The administration did not comply, landing the planes with over 200 immigrants in El Salvador.

Boasberg held a hearing Monday, listening to evidence to help him determine if the order was violated. Another hearing is scheduled for Friday. White House Press Secretary Karoline Leavitt said Monday that the administration did not violate the order.

“All of the planes that were subject to the written order of this judge departed U.S. soil, U.S. territory, before the judge’s written order,” Leavitt said during a news briefing Monday.

The move is part of a larger pattern from the Trump administration of pushing the boundaries of executive power by trying to challenge Congress’s constitutionally-held power to dictate federal spending.

“If you’re a textualist and you believe in the founder’s vision of the country, and you believe in the text of the Constitution — if you are that kind of a conservative like (former Supreme Court Justice Antonin) Scalia, you would be appalled at this situation, because this is not what the Founding Fathers had in mind,” said Warigia Bowman, who teaches administrative law at the University of New Mexico. “The Founding Fathers wanted presidents and the Congress and the courts to each respect their jurisdiction.”

While Congress makes laws and presidents implement them, the judicial system is tasked with interpreting laws. The executive branch ignoring court orders would undermine the balance of power between the three branches of government.

“If a president can defy the law in pursuit of policies you like, then the next president can defy the law in pursuit of policies you hate. And since no president or party stays forever, we’re all better off if presidents have to obey the law,” said retired UNM constitutional law professor Peter Kierst.

It is highly unusual for a president to disregard a court order. More typically, an administration might be lukewarm about enforcing a court order it doesn’t like, Bowman said.

“Nixon was asked to turn over the Watergate tapes, and he did it even though it meant the end of his presidency,” Bowman said.

Bowman does not think the country has reached a constitutional crisis, ”but we’re going in that direction, because if the executive does not obey judicial orders, we have a separation of powers problem.” Neither does Kierst.

“But the courts themselves are fairly limited in their ability to enforce their own orders. And if Congress won’t push back, and (Trump) defies the courts then, yeah, we’re in a world of hurt,” Kierst said. “And I don’t see, quite frankly, this Congress showing any inclination at all to push back against the President’s invasion of its authority.”

Daniel Gomez, a New Mexico State University assistant professor of American politics, does think the country has reached a constitutional crisis.

“We’re seeing obvious instances where this wanted separation of powers idea of checks and balances is on paper, but not in practice,” Gomez said.

Congress could try to check executive branch power by writing more specific laws, Gomez said. The courts could do something similar by writing more specific orders, according to Bowman.

Congress could more dramatically check the executive branch with impeachment, something attempted twice during Trump’s first term. Impeachment may be unlikely given Republicans have majorities in the House and the Senate.

“The ultimate check really, is the people, because Congress is democratically elected,” said Vinay Harpalani, a UNM law professor.

The economy might also serve as a backstop.

“The rule of law is absolutely essential to doing business,” Bowman said. “So if businesses do not feel confident that the rule of law is in place, then it could dramatically affect the economy. So that may be what finally makes the administration change their ways.”