How Trump’s clash with the courts is brewing into an ‘all-out war’

Arresting judges. Threatening their impeachment. Routinely slamming them on social media and trying to go around them completely.

President Donald Trump and his allies have led an intense pressure campaign on the judiciary four months into his administration. Both sides of the political spectrum are using the term constitutional crisis.

“It’s an all-out war on the lower courts,” said former federal Judge John Jones III, who was appointed by President George W. Bush.

More: ‘Spaghetti against the wall?’ Trump tests legal strategies as judges block his policies

As the clash becomes a defining moment in the president’s second term, conservative activists are pushing Congress to rein in federal judges and pressing Trump to intensify his fight with the courts. The Article III Project, a Trump-aligned group, arranged 164,000 phone calls, emails and social media messages to members of Congress in recent weeks urging lawmakers to back Trump in this judiciary fight. They called for impeaching Judge James Boasberg – one of the federal judges who has drawn MAGA’s ire – after he ordered a temporary halt to Trump’s effort to deport some immigrants. They also want lawmakers to cut the federal budget for the judiciary by $2 billion after Judge Amir Ali ordered the Trump administration to unfreeze that amount of foreign aid.

The group is supporting bills introduced by Sen. Chuck Grassley, R-Iowa, and Rep. Darrell Issa, R-California, aimed at stopping federal district judges from issuing nationwide court orders, which have blocked some of Trump’s policies. Mike Davis, a former Republican Senate aide and the Article III Project’s founder and leader, said the legislation sends a message to Chief Justice John Roberts as the Supreme Court weighs taking a position on the injunctions. Issa’s bill has cleared the House, while Grassley’s has yet to advance.

“It’s really effective,” Davis said. “When you talk about these legislative reforms it scares the hell out of the chief justice.”

Constitutional crisis warnings

Pizzas have been sent anonymously to the homes of judges and their relatives, prompting judges to raise concerns about apparent intimidation tactics. In his year-end report in December, Roberts warned that the court’s independence is under threat from violence.

More: Supreme Court Chief Justice John Roberts: Courts’ independence under threat from violence

Activists on the right are adopting some of the language being employed by Trump critics about an impending constitutional crisis, but with a very different meaning: opponents say Trump threatens the Constitution’s separation of powers by ignoring court rulings, while Trump supporters say judges are usurping the president’s rightful executive authority. Both argue that the nation is at a perilous moment.

More: Kamala Harris doesn’t hold back in sharp rebuke of Trump’s first 100 days ‘

Steve Bannon − the president’s former White House chief strategist − is predicting an explosive summer of crisis with the judicial battle at the center, saying on his podcast recently that the nation is approaching “a cataclysmic” moment. Many of Trump’s critics agree, but believe it’s a crisis of Trump and the right’s own making.

“Some allies of the administration are inviting the constitutional crisis… because they want to enfeeble our judiciary and destroy our system of checks and balances,” said Gregg Nunziata, an aide for Secretary of State Marco Rubio when he was in the Senate and now the executive director of the Society for the Rule of Law, a group founded by conservative legal figures from previous Republican administrations.

Executive orders and a clash between government branches

Trump has pushed the boundaries of executive power during his first four months in office with aggressive moves that are drawing legal challenges, including shuttering whole federal agencies, mass layoffs of federal workers, firing members of independent board and taking dramatic steps to deport undocumented immigrants.

He also has invoked a 1798 wartime law to more quickly whisk people out of the country.

Trump’s actions have sparked nearly 250 legal challenges so far. The court cases have resulted in at least 25 nationwide injunctions through late April temporarily halting Trump’s actions, according to the Congressional Research Service.

More: Dismantling agencies and firing workers: How Trump is redefining relations with Congress and courts

Frustrated with unfavorable court decisions, the administration has taken an increasingly hostile stance to the federal bench. Trump complained in a May 11 social media post about a “radicalized and incompetent Court System.”

“The American people resoundingly voted to enforce our immigration laws and mass deport terrorist illegal aliens,” said White House spokesman Kush Desai. “Despite what activist judges have to say, the Trump administration is legally using every lever of authority granted to the executive branch by the Constitution and Congress to deliver on this mandate.”

The clash with the courts has sparked talk of a breakdown in the constitutional order. After the Supreme Court ordered the Trump administration to “facilitate” the return of a Maryland resident wrongly deported to El Salvador and the administration continued to resist bringing him back, U.S. Sen. Adam Schiff, D-California, declared: “The constitutional crisis is here. President Trump is disobeying lawful court orders.”

Bannon talked in an NPR interview about a “constitutional crisis that we’re hurtling to.” Trump and allies such as Davis have complained that the judges ruling against him are left wing partisans. “Once judges take off their judicial robes and enter the political arena and throw political punches, they should expect powerful political counter punches,” Davis said.

Yet some of the president’s biggest legal setbacks have come from Republican-appointed judges, including multiple judges appointed by Trump. Judge Fernando Rodriguez of the Southern District of Texas is a Trump appointee who ruled against him on using the 1798 Alien Enemies Act to deport certain migrants. Another Trump appointee, Judge Trevor McFadden with the D.C. District, ruled last month that the Trump administration must reinstate access to presidential events for the Associated Press news agency, which had been barred because it continued to use the term “Gulf of Mexico” instead of Gulf of America in its coverage.

More: Judge lifts Trump restrictions on AP while lawsuit proceeds over ‘Gulf of Mexico’

Jones, who had a lifetime appointment to serve as a federal judge beginning in 2002 until he left to become president of Dickinson College in 2021, called the rhetoric directed at judges by the Trump administration “abominable… and entirely inappropriate.”

“It absolutely misrepresents the way the judges decide cases,” he said. “And unfortunately, many people are listening to this and and they’re getting a completely mistaken impression of how judges do their jobs.”

Due process rights, and the Fifth and Fourteenth Amendments

One of the biggest points of contention has been due process rights, which are guaranteed under the Constitution’s Fifth and Fourteenth Amendments. They prohibit the federal and state governments from depriving any person “of life, liberty, or property, without due process of law.”

The same rights American citizens have to contest government actions against them in court extend to undocumented immigrants facing detention and deportation.

Trump came into office promising mass deportations and has moved aggressively, including invoking the Alien Enemies Act, which allows for the targeting of certain immigrants “without a hearing and based only on their country of birth or citizenship,” according to the Brennan Center for Justice.

More: Trump has cracked down on immigration and the border. At what cost?

Courts have balked at his tactics.

In the most high-profile case, the Supreme Court ruled the Trump administration must “facilitate” the return of Kilmar Abrego Garcia, a Maryland resident wrongly sent to a notorious prison in El Salvador.

The Supreme Court on May 16 also temporarily blocked the Trump administration from using the Alien Enemies Act to more quickly deport a group migrants held in Texas, sending the case back to the appeals court to decide the merits of whether the president’s use of the legislation is lawful, and if so what process should be used to remove people.

The administration hasn’t brought Abrego Garcia back, and Trump has expressed frustration with the judiciary’s insistence on due process. He lashed out after the latest Supreme Court ruling, writing on social media that the court “is not allowing me to do what I was elected to do.”

Trump Deputy Chief of Staff Stephen Miller brought up the debate on May 9 when he said the administration is investigating suspending habeas due process rights, which only is allowed by the Constitution to preserve public safety during “Rebellion or Invasion.”

“It’s an option we’re actively looking at,” Miller said. “Look, a lot of it depends on whether the courts do the right thing or not.”

Conservative media figure Rogan O’Handley told USA TODAY he saw online commentary about suspending habeas corpus and began promoting it to the 2.2 million followers of his @DC_Draino X handle. He said he was dismayed by the judicial rulings against Trump’s immigration agenda and seized on the idea to “get around” the courts.

“We had to step up the intensity of our tactics,” he said.

More: Trump administration floats suspending habeas corpus: What’s that?

O’Handley went on Bannon’s podcast April 22 to promote suspending habeas. He was invited to join the White House press briefing on April 28 and asked a question about it. Two days later, on April 30, Trump was asked during a Cabinet meeting about his administration’s planned response to the rash of nationwide injunctions against his deportation efforts and seemed to allude to suspending habeas.

The idea – last done in Hawaii in 1941 after Japan bombed Pearl Harbor – highlights how the Trump administration is determined to push through any legal or constitutional obstacle to its deportation plans.

Trump and Chief Justice John Roberts

Among Trump’s biggest obstacles so far during the second term is the judiciary, which repeatedly has blocked some of his actions, calling his methods unlawful and drawing his ire.

“We need judges that are not going to be demanding trials for every single illegal immigrant,” Trump told reporters recently on Air Force One. “We have millions of people that have come in here illegally, and we can’t have a trial for every single person.”

Immigration cases don’t go before a jury, but instead are decided solely by an immigration judge.

Miller has complained about a “judicial coup” while Bannon, the podcaster and White House chief strategist during Trump’s first administration, says there is a “judicial insurrection.”

The conflict has been brewing for months.

Trump said March 18 on social media that a federal judge who ruled against him in an immigration case should be impeached, drawing a rare rebuke from Roberts, the chief justice of the United States and another Bush appointee.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in March.

Tensions have only escalated.

On April 25 federal authorities announced charges against a Wisconsin judge and former New Mexico judge, accusing them of hampering immigration enforcement efforts. Milwaukee County Judge Hannah Dugan pleaded not guilty May 15.

On May 22, the House passed Trump’s sweeping tax legislation and included language inside the more than 1,100-page measure that could protect the Trump administration if a judge determined officials violated a court order. The language limits a judge’s ability to hold someone in contempt of court if they “fail to comply with an injunction or temporary restraining order.”

Suspending habeas corpus?

Constitutional scholars told USA TODAY the Trump administration can’t suspend habeas corpus without congressional approval.

“If President Trump were to unilaterally suspend habeas corpus that’s flagrantly unconstitutional,” said University of North Carolina School of Law professor Michael Gerhardt.

Duke Law Professor H. Jefferson Powell, a former deputy solicitor general during Democratic President Bill Clinton’s administration, said “the standard position of the vast majority of constitutional lawyers is that Congress alone” can suspend habeas corpus.

“This is not a close call,” he said.

More: Judge finds Trump administration disregarded order on Venezuelan deportations

Any attempt to suspend due process rights would be a shocking move, the equivalent of a “legal earthquake,” said Jones.

Miller’s comments added to the growing alarm among those concerned the Trump administration is threatening the rule of law and a constitutional crisis.

Judges have reprimanded the Trump administration for not following their rulings. Boasberg found probable cause last month to hold the administration in contempt for “deliberately and gleefully” violating one of his orders. And Judge Brian Murphy with the Federal District Court in Boston ruled May 21 that the Trump administration “unquestionably” violated his order not to deport people to countries that are not their own without giving them an opportunity to contest the move.

White House Press Secretary Karoline Leavitt said in a May 22 press briefing that the “administration has complied with all court orders,” slammed Murphy’s ruling and complained about “radical” judges.

Murphy is “undermining our immigration system, undermining our foreign policy and our national security,” Leavitt said.

Jones said the administration is playing “games with the lower courts” but the real sign of a constitutional crisis would be if the Supreme Court sets a “bright line” that the Trump administration disregards.

“We’re on the verge, maybe, of that,” he said.

This article originally appeared on USA TODAY: Trump’s clash with judges escalates to ‘all-out war’

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