A masterclass in figuring out ways not to do what judges order

Outright defiance by state or federal officials of court orders is rare. An artful administration can circumvent court orders in other ways.

Fifty years ago, singer/songwriter Paul Simon released what would become a smash hit: “50 Ways to Leave Your Lover.” As the title suggests, Simon described different underhanded techniques for ending a relationship.

Today, Americans are witnessing another masterful display of dexterity. But this time, it is not about romance; instead, it is about different ways to avoid doing what a court orders you to do.

And the virtuoso performers are the president of the United States and those who work in his administration.

We saw this again on Wednesday when U.S. District Judge James E. Boasberg, in an effort to pin down Justice Department lawyers, ordered the department to provide due process to immigrants the administration had spirited out of the country in defiance of one of his earlier orders. His decision chronicles the administration’s pattern of evasiveness and, like an exasperated parent chiding a child, reminds them of their “duty” to comply.

Much ink has been spilled trying to figure out whether this country is experiencing a constitutional crisis, with commentators generally agreeing that we would be if and when the Trump administration defies a court order. But that is the wrong way of thinking about what has been going on between the judiciary and the executive since Jan. 20.

Outright refusal to obey court orders is not unknown in American history. Take, for example, the campaign of “massive resistance” by Southern politicians to the Supreme Court’s Brown v Board of Education decision ordering the integration of public schools.

Sen. James Eastland, a Democrat from Mississippi, openly declared that “the South will not abide by nor obey this legislative decision by a political body.” So far, the president has not made an Eastland-like declaration.

But outright defiance by state or federal officials is rare. An artful administration can circumvent court orders in other ways.

Before reviewing some of those techniques, we should note that though the American public is deeply divided on a whole range of things, there is widespread agreement that the administration should do what the courts tell it to do. In late April, a Pew poll found that 78% of respondents think that the Trump administration should obey orders from federal judges. Eighty-eight percent want the president to do what the Supreme Court tells him to do. That is one measure of the political cost of outright defiance.

But so far, the media has not done what it needs to do to alert the public to all the ways the administration is evading and dodging. Every major newspaper and television news program should offer a weekly “box score,” showing how many court decisions were handed down and how the administration responded to each of them.

Instead of burying that story in long news reports about what the administration did about this or that court order, make it vivid and visual. Make it easy to share on social media. Make it easy for the public to see and understand the “50 ways” of not doing what the courts say they should do.

Let me note a few of the things that such a box score might highlight.

First, there is what I call “patriotic” denunciation of court decisions. On May 29, the president took to Truth Social to make such an appeal in reaction to a court decision saying he did not have the legal authority to impose tariffs.

He wrote, “The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs.” Judges, he continued, “always must do what’s right for the Country!” Such appeals to patriotism seed the ground for evasion and avoidance of court orders, as we have seen especially in the administration’s response to what courts have done in immigration and deportation cases.

Another of the administration’s favorite tactics is what law professors Leah Litman and Daniel Deacon call “legalistic noncompliance.” This tactic, they explain, refers to the administration’s practice of making “an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight. It … obscures the substance of what the administration is doing with the soothing language of the law.”

They highlight the deportation of Kilmar Abrego Garcia, who is now being held in El Salvador. “In and out of court, the administration has insisted that it has no control over someone who is in the custody of a foreign sovereign. This argument … is presented in the trappings of law, invoking concepts such as custody and sovereignty.”

A third way the administration gets around court orders is to claim ignorance or incompetence. Take the case of Jordin Melgar-Salmeron, another person deported after a court forbade the administration from doing so. Explaining to the U.S. Court of Appeals for the Second Circuit why Melgar-Salmeron was sent to El Salvador anyway, government lawyers blamed what they called “a confluence of administrative errors.”

A final example of noncompliance without defiance involves slow walking judicial requests for information. We have seen that in several cases in which the government has repeatedly asked for last-minute extensions of time to produce documents or do what a court has asked it to do.

Like the person seeking to end a relationship in a devious way, in its dealings with courts, the Trump administration has mastered the art, as Paul Simon advised a half century ago, of just “slip(ping) out the back, Jack … (to) get yourself free.” If the administration would devote half as much energy to figuring out how to comply or run the country in a competent fashion, America would be in a much less sorry and troubled state.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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