When does Trump’s defiance of courts in deportation case cross the line into a constitutional crisis?

WASHINGTON – Presidents of both parties have pushed the limits of their authority throughout history.

During the Civil War, Abraham Lincoln suspended the writ of habeas corpus. Andrew Jackson refused to enforce a Supreme Court order involving a clash between Georgia and the Cherokee Nation, mocking the court’s inability to enforce its ruling without his help.

But historians are hard-pressed to recall an instance when a president defied federal courts as blatantly as President Donald Trump has done in the case of Kilmar Abrego Garcia, the migrant deported to El Salvador without a hearing and in violation of judicial orders.

“We’re in a moment of great constitutional peril,” said Praveen Fernandes, vice president of the Constitutional Accountability Center, a progressive think tank. “All the signs are that we are inching towards a constitutional crisis.”

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When constitutional scholars think back on clashes between federal courts and other branches of government, numerous flashpoints come to mind – moments when presidents, rather than ignoring or undermining the judiciary, safeguarded its role in the balance of power.

Many of those moments came during the Civil Rights era.

In 1954, the Supreme Court ruled in Brown v. Board of Education that racial segregation in public schools was unconstitutional. Many states refused to comply.

In Arkansas, Gov. Orval Faubus resorted to using the Arkansas National Guard to block the doors at Central High School in Little Rock to keep out African American students.

Three years after Brown, President Dwight D. Eisenhower ordered the Army’s 101st Airborne Division to Little Rock with instructions to use “whatever force may be necessary” to enforce the court order. The intervention opened the way for the first group of African American students at Central, known as the Little Rock Nine.

In 1962, a federal appeals court ordered the University of Mississippi to allow African American students to enroll. Gov. Ross Barnett blocked James Meredith from registering. Even with U.S. Marshals, Meredith’s attempts were unsuccessful. On Sept. 30 and for the next 10 days, President John F. Kennedy federalized the Mississippi National Guard to enforce desegregation at Ole Miss.

A similar showdown played out in 1963 in Alabama. Gov. George Wallace staged the famous stand in the schoolhouse door, blocking access to the University of Alabama registrar. Kennedy federalized the Alabama National Guard and ordered them to move Wallace out of the way.

In 1965, President Lyndon Johnson again federalized the Alabama National Guard, this time to preserve order in Selma after the “Bloody Sunday” march weeks earlier.

Each time, scholars point out, presidents served as enforcers for the federal judiciary.

Trump aides have argued that if there is a “constitutional crisis,” it stems from liberal judges trying to stymie the president, as when he began to freeze grants and fire federal workers.

“The real constitutional crisis is taking place within our judicial branch, where district court judges and liberal districts across the country are abusing their power to unilaterally block President Trump’s basic executive authority,” White House press secretary Karoline Leavitt said during a press briefing three weeks into Trump’s second term.

“Judges aren’t allowed to control the executive’s legitimate power,” Vice President JD Vance said in February.

Presidents have not always given enthusiastic deference to the courts.

In 1832, the Supreme Court ordered the release of a Cherokee missionary being held in Georgia, in a ruling that said the state had no jurisdiction on tribal land. Gov. Wilson Lumpkin refused to comply.

President Jackson refused to intervene. And – in a comment some historians view as apocryphal – he scoffed at the impotence of the chief justice and the high court: “John Marshall has made his decision, now let him enforce it.”

Fernandes sees a key distinction between Jackson’s inaction and Trump’s more overt defiance. In the Georgia case, he said, “the court order wasn’t directed towards the federal government. It was directed towards the state.”

Another chief justice clashed with a different president during the Civil War.

In 1861, early in the war, Union authorities arrested a Maryland farmer named John Merryman, accusing him of sabotage. Chief Justice Roger Taney issued a writ of habeas corpus, ordering Merryman be charged or released.

Lincoln invoked a clause in the Constitution allowing suspension of the writ of habeas corpus in time of rebellion. But the clause didn’t explicitly give the president that authority, and the Taney court ruled that Lincoln had overstepped.

Lincoln refused to back down. Federal authorities continued to use the wartime power and Congress ratified the suspension of habeas corpus in 1863.

Lincoln’s defiance is perhaps the closest parallel to Trump’s, scholars say, but there are key differences.

On March 15, Trump invoked the 1798 Alien Enemies Act, which allows the president to detain and deport non-citizens without due process.

Only three presidents had invoked the law before Trump, each time during wartime: the War of 1812 and the two world wars.

The U.S. is not currently at war.

The incident that has Trump’s critics warning of a constitutional crisis looming or underway involves Abrego Garcia, a longtime Maryland resident who came to the U.S. illegally at age 16 in 2012.

Abrego Garcia was one of more than 200 deportees flown to El Salvador and imprisoned there on behalf of the U.S. government in mid-March.

While the two planes were en route, U.S. District Judge James Boasberg ordered federal officials to turn them around, and he ordered Trump’s use of the Alien Enemy Act temporarily halted.

The government ignored the order. When the planes landed, El Salvador’s president, Nayib Bukele, tweeted “Oopsie, too late.” Secretary of State Marco Rubio retweeted the taunt.

“A single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil,” Leavitt said.

Trump called Boasberg a “Radical Lunatic” who should be impeached.

Unlike other deportees, Abrego Garcia was explicitly protected against deportation to El Salvador, where his family had faced threats from gang members before they fled to the U.S., due to a “clear probability of future persecution” there.

The Justice Department acknowledged the error in court. But Trump and his aides have argued that Abrego Garcia could have been deported lawfully to any other country – and would be if he ever returns to the U.S. – because he is a dangerous gang member.

Abrego Garcia denies that allegation. He has never faced charges related to gang activity and the government has provided only an unsubstantiated tip as evidence.

Another federal judge, Paula Xinis, ordered Abrego Garcia’s return. On April 10, the Supreme Court upheld that ruling and ordered the Trump administration to “facilitate” his release.

Trump has refused. His administration has also resisted Xinis’ demand for regular updates on efforts made to free Abrego Garcia from detention in El Salvador for which the U.S. is paying.

“There has been no case like this in American history,” said Susan Liebell, a professor of political science at Saint Joseph’s University in Philadelphia who has written about the “imperial presidency.” “The Supreme Court has no way to enforce its decisions — it relies on the legislature or executive to back them up.”

Trump, she said by email, has “been contemptuous of courts and judges who have ruled against him or his interests. He has generally denigrated the due process that undergirds American law.”

Arizona Attorney General Kris Mayes is among the many Democrats who view Trump’s unwillingness to obey courts and comply with laws as alarming.

On Wednesday, she announced a lawsuit asserting that he has far overstepped his authority in imposing tariffs, one of many such multi-state lawsuits she has joined.

“We are facing an unprecedented and lawless presidency,” she told reporters in Phoenix. “One that has made a habit over the past three months of disregarding the separation of powers and ignoring the two other co-equal branches of government.”

Cronkite News Washington correspondent Emma Paterson contributed to this report. For more stories from Cronkite News, visit cronkitenews.azpbs.org.