Constitutional law professor analyzes Trump’s clash with the judiciary

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• Amna Nawaz:

  For more on the legal ramifications of the Trump administration's showdown with the judiciary, I'm joined now by Steve Vladeck, a constitutional law professor at Georgetown University.

  Steve, welcome back.

  Let's just pick up where Laura left off there, this extraordinary back-and-forth between the Department of Justice and Judge Boasberg here. The judge wants more information on the flights. Department of Justice has until Thursday to produce it.

  When you look at this, does this seem to be an administration in defiance of the judge's orders?

• Steve Vladeck, Georgetown University Law Center:

  I don't know that the administration really has reached the point of open defiance.

  I think it's more like what my 6-year-old does, which is testing the boundaries of the authority, pushing to see how much they can get away with, pushing to see sort of where the line is, but while preserving plausible deniability that they're not actually saying they can't be bound.

  And I think that's part of why you see this back-and-forth between President Trump and Chief John Roberts. And where this ends, I think is really the big question now. We have heard just late this afternoon the D.C. Circuit has scheduled arguments in the government's effort to shut down Judge Boasberg for next Monday.

  So I don't know that we're at the outright defiance stage yet, but I do think this is more resistance from the executive branch than we have seen certainly in our lifetime and perhaps ever.

• Amna Nawaz:

  And seeking to test those boundaries, let me put to you what the administration says, because they argue they have absolute constitutional right to protect national security, to conduct foreign policy in the way they see fit.

  They see these deportation flights as part of that effort. Is that a sound argument, that the president has absolute power on this front?

• Steve Vladeck:

  So, no.

  I mean, the Alien Enemy Act of 1798, if we just look at some of its historical invocations, take World War II. I mean, World War II, a moment where President Roosevelt had as strong an argument for whatever authority the Constitution could possibly provide, and, instead, he relied upon the statute not just as a basis for detaining and removing German and Italian alien enemies, but for holding hearings.

  I mean, there are literally hundreds of reported judicial decisions from World War II where individuals who were picked up, who were held as alien enemies said, hey, I'm not actually German, I'm Swiss, or I'm not Italian, I'm actually American. And courts scrutinized the basis for the government's behavior.

  If that was what was required in the middle of World War II in 1944, hard to see how less is required here in 2025, when it's not remotely as clear that the president's national security powers are even that strongly implicated.

• Amna Nawaz:

  So you have said it doesn't seem the administration is an open defiance of the judge's orders right now.

  But President Trump was asked in an interview last night about whether he would ever defy a judge's order. Here's what he had to say.

• Donald Trump:

  I never did defy a court order.

• Laura Ingraham, FOX News Anchor:

  And you wouldn't in the future?

• Donald Trump:

  No, you can't do that. However, we have bad judges. We have very bad judges. And these are judges that shouldn't be allowed. I think they — I think, at a certain point, you have to start looking at, what do you do when you have a rogue judge?

  The judge that we're talking about, he's — you look at his other rulings, I mean, rulings unrelated. But having to do with me, he's a lunatic.

• Amna Nawaz:

  Steve, what the president's saying here is, he wouldn't defy a court order, but some judges, he says, are bad, they are rogue.

  What do you take away from that answer?

• Steve Vladeck:

  I mean, I think we should point out a couple things.

  First, the number of cases President Trump is losing before the number of judges he's losing them in front of, that's an awfully large number of rogue judges. Perhaps the real problem is that we have a rogue administration.

  But, second — and I think Chief John Roberts chose his words very carefully in the statement he issued yesterday, which is, the remedy our legal system provides for individual, trial level district court judges who get things wrong is the remedy of appeal. That's what the Biden administration did when so many of its policies were blocked by handpicked right-wing judges in Texas.

  And it's what every president has done going all the way back to the founding. So I think part of the problem here is that you can believe that a judicial decision is wrong. You can even believe that a judge is rogue, although I think the evidence here is lacking. But the remedy for all of that behavior is not to undermine the judge, is not to threaten his security, is not to call for his impeachment.

  The remedy is to let the legal system do what the legal system does, which is correct erroneous rulings on appeal. And maybe the judge is actually not wrong. And maybe the appellate courts side with Judge Boasberg in this case.

• Amna Nawaz:

  Just to underscore what we're seeing at this moment, because you mentioned Chief Justice John Roberts. He was very careful in his wording.

  Another part of his statement he issued said: "It's not an appropriate response to disagreement concerning a judicial decision" on — referring to President Trump and others' calls for judges to be impeached.

  For the chief justice to choose to weigh in, to do so publicly, how significant is that?

• Steve Vladeck:

  It's really quite remarkable. And it's remarkable both that the chief justice chose to weigh in and how quickly he did.

  President Trump just, I think, first publicly called for the impeachment of Chief Judge Boasberg on Monday. And, by Tuesday, you have Chief John Roberts, who does nothing without deliberation, issuing this statement.

  I think it's a striking concession by the chief justice that these are not ordinary times. And, frankly, I think it's a message not to President Trump, but rather to every district judge in the country that the chief justice has their back, and to us, the American people, that whatever you think of the courts, whatever you think of the Supreme Court today, our system is predicated on the idea that the courts get to interpret the law, and that, if they get it wrong, the right remedy is to appeal.

  And if the Supreme Court gets it wrong, that's when we talk about what Congress can do. Can we amend the Constitution? The right remedy is not for an individual president to be able to say, I don't agree with this decision, so I'm not going to follow it. Otherwise, then you have a government not of laws. You have a government of one person, and that's exactly what the Constitution set up to avoid.

• Amna Nawaz:

  Steve Vladeck, professor of constitutional law at Georgetown University, always great to speak with you. Thank you so much for making the time.

• Steve Vladeck:

  Any time. Thanks for having me.