Last week, the top federal judge in Minnesota accused Immigration and Customs Enforcement (ICE) of violating nearly a hundred court orders in the month of January. In a ruling that was part of a contempt case involving Todd Lyons, the acting director of ICE, the judge, Patrick J. Schiltz, wrote, “ICE has every right to challenge the orders of this Court, but, like any litigant, ICE must follow those orders unless and until they are overturned or vacated.” ICE, Schiltz added, “is not a law unto itself.” The ruling marks perhaps the most serious turn in an ongoing battle between federal courts and the White House, with the Trump Administration often appearing to blatantly ignore court orders, or to comply with them only after being repeatedly warned to do so.

I recently spoke by phone with Ryan Goodman, who is a law professor at N.Y.U., the co-editor-in-chief of the law-and-policy journal Just Security, and a former special counsel at the Department of Defense during the Obama Administration. He and his colleagues at Just Security have been cataloguing examples of the Trump Administration’s defiance of court orders since the start of the President’s second term. During our conversation, which has been edited for length and clarity, we discussed what the Trump Administration is trying to accomplish with its disregard for the judiciary, the emergence of an alternative legal system for ICE detainees, and the Supreme Court’s reluctance to rein in Trump.

What stuck out to you most about the Minnesota judge’s ruling?

The part that stuck out the most to me is that Schiltz is a Republican-appointed judge, and he is systematically documenting noncompliance with federal district-court orders—in the immigration context, and especially when it comes to habeas corpus. He’s calling out the gravity of the situation, in which, as he says, there are likely more violations of court orders on ICE’s part in one month than in some agencies during their entire lifetime. Stephen Miller suggested, in May, that the Administration was “looking at” suspending habeas corpus. Now, lo and behold, what Judge Schiltz is describing is a form of effectively suspending habeas corpus. And Schlitz is certainly not alone in this judgment. There are other judges in Minnesota who have called attention to this phenomenon in very similar terms, describing it not just at the individual-case level, but at the system-wide level.

What, specifically, is Judge Schiltz accusing ICE of doing? Can you give an example?

What he is calling out, in his particular case, is that the court is ordering someone to be released from ICE detention, and the government’s not releasing them. It’s that significant—fundamental liberty is at stake. And then he is referring to seventy-three other cases that all include possible habeas-corpus violations, i.e., very similar patterns of either the court ordering the government to release somebody and them not being released, or the court ordering the government to present the person to the court physically, and them not being allowed to leave detention, or the court ordering someone not to be taken out of its jurisdiction. That’s the very definition of habeas corpus—to bring the body to the court. And they haven’t been doing that. There’s another very pernicious pattern that arises in these cases, which is that the court orders the government not to transfer the individual out of their jurisdiction, and the government goes ahead and transfers them out of their jurisdiction anyway, often to Texas, where there’s a more favorable judicial climate, which can effectively deny the person their real rights before the court in Minnesota.

Does the sheer frequency with which this is happening suggest that ignoring court orders has become an ICE policy of sorts?

It can’t just be happenstance. They’re carrying it out in a way that makes it a policy by default. I should also note that there are multiple judges who have found that the government’s actions are “willful,” and “willful” is a trigger word because it means it’s deliberate, and that’s what could lead to charges of criminal contempt. And multiple judges are, in fact, saying that they might hold the government in criminal contempt. One of the judges who flagged this in particular is Judge Mary McElroy, who is a Trump-appointed district judge. And last week, she issued a ruling that said she has no way to avoid concluding that the government is willfully violating her orders.

But in Schiltz’s ruling, he rescinded an order that had called the acting director of ICE, Todd Lyons, to appear in court and explain why he should not be held in contempt. Why?

I think judges are being very careful. If they hold the government in contempt, and the government still doesn’t abide by the court orders, we might very well be in a constitutional crisis. The judges appear to be hoping upon hope that if they threaten contempt, the government will come into line, either in the individual case before the judge or across the board.

So they do not want a constitutional crisis, but what is the alternative? You tiptoe around it and hope that the government comes into compliance by baby steps?

That’s right. It’s a very sensitive interaction. And, in some of these cases, with the threats, the government has come into compliance. But, at a certain point, it does seem as though the courts are going to have to take that next step, which is civil or criminal contempt against individuals. They also have the capacity to refer individuals for disciplinary measures, and they can disqualify particular Justice Department attorneys from handling certain cases before their courts—reputational hits for some of these individuals. I think that will be the next escalation.

There was a lot of discussion last year about the Trump Administration ignoring the courts. My own feeling from following the issue had been that they would walk up to the line in most instances, and then, in the rare cases where the Supreme Court ruled against them, they would comply. It seems like the Trump Administration wants to show that it can be uncompliant, but it doesn’t want to actually spark something that would create a huge drama or constitutional crisis, pitting it against the Supreme Court. Is that your understanding?

I do think they are playing a game of pushing it as close to the line as they can. I also think, in some instances, it is actually just gross incompetence or internal miscommunications. For instance, the Department of Justice lawyers might tell D.H.S. not to transfer somebody to another jurisdiction, but the communication doesn’t reach them in a timely fashion.

In the higher-stakes cases, the Justice Department is doing something more egregious. They do appear to be defying court orders to effectuate a policy. The key case for that is the Alien Enemies Act case, which came before Judge Boasberg. This happened within the first several hours of the President’s invocation of the Alien Enemies Act, in March. It’s about the flights that took off to El Salvador to bring those people alleged to be Venezuelan gang members to the CECOT torture prison.

Erez Reuveni, a D.O.J. lawyer and whistle-blower, revealed what happened behind the scenes, including text messages that corroborate his account. He alleges, with strong evidence, that it was a deliberate policy to, no matter what, get those people to El Salvador, even if there were court orders preventing their deportation. According to Reuveni, Emil Bove, a Trump loyalist at the D.O.J., had said in a meeting before the hearings that they would have to consider telling the courts, “Fuck you.” And then there’s contemporaneous text messaging between the D.O.J. attorneys during the oral hearing, in which they say that this is the “fuck you” moment. [Bove has testified that he does not recall saying this.] It’s just very clear, based on these allegations, what happened there. So I think that, to me, that would be the constitutional-crisis moment, that a case would get to the Supreme Court and they would do that to a Supreme Court order. They think they can get away with it more when it’s in district courts.

This feels like one area among many where, even if we aren’t yet in a worst-case scenario, or we convince ourselves that we are not, if you told someone ten years ago what was going on, they would think, Oh, well, that is a worst-case scenario.

Absolutely, yes, I think that’s right. Coming into this Administration, I was worried about some of the things that this Administration could do that would constitute crossing the red line. That would include open defiance of a court order. And here we are in the dozens. So I do think we’re in a new normal, and I do worry that the public has been desensitized to how concerning this is. But, going back to the subject of immigration, the defiance of these court orders is creating a lawless situation that I think judges are rightly concerned about. Another district court judge in Minnesota, Michael Davis, accused the government of attempting to undermine the regulatory and statutory authority of the immigration courts to coerce perpetual, infinite detention. So I think it really is setting up a parallel system of immigration detention that exists in defiance of the courts.

Do you mean that they’re essentially normalizing a practice where detainees do not get their time in court?

I’m definitely concerned about that. I think the reason the system is still holding is that we have instances in which the courts, by threatening civil and criminal contempt, are able to bring the government back into line. [The Times reported last weekend that hundreds of detainees have now been released from immigration detention after habeas petitions began filling up the federal-court dockets.] We have a court concluding that a government’s in flagrant violation of its orders, while still being able to coerce the government back into place. That’s the kind of knife’s edge we’re on right now.

What’s happening in the courtroom is part of a broader slide towards lawlessness, because defiance of court orders is connected to another ICE policy: the agency repeatedly states that its entire system of arrest is based on reasonable suspicion. And that is legally invalid because arrests have to be based on probable cause. A D.C. district-court judge, Beryl Howell, chastised the agency for this in December, summarizing several instances in which D.H.S. had repeatedly said that ICE arrests were based on reasonable suspicion, and they continue to do it. They’ve done it as recently as the past couple of weeks.

What’s the difference between reasonable suspicion and probable cause?

Reasonable suspicion is similar to stop-and-frisk policies, in which a law-enforcement officer can stop somebody very briefly and ask them questions on the basis of a low threshold of evidence. But actually arresting somebody and putting them in custody requires a much higher level of proof, which is probable cause. In the immigration context, to apprehend and detain someone for a long time, they’d need to have more than a reasonable suspicion, meaning much greater evidence indicating that the person is in the country unlawfully. So, for them to state and restate again and again that they’re basing their arrests on reasonable suspicion is like a failing answer on the bar exam. And they’re doing that continually, despite the court calling them out for it.

It is also important to note that D.H.S. has authorized ICE agents to enter homes without a judicial warrant. To me, these two policies are putting ICE operations on the road to a very different form of legal system than the one we’re used to. They’re breaking rules.

Probable cause is from the Fourth Amendment, right? Where does reasonable suspicion come from?

Both of them are straight out of Supreme Court interpretations of the Fourth Amendment. And Justice Brett Kavanaugh, in his recent opinion in Trump v. Illinois, goes out of his way in a footnote to reiterate that an arrest has to be based on probable cause. And he’s specifically talking about ICE operations.

You said the country would be at risk of a constitutional crisis if the White House ignored a Supreme Court order. Is there a reason that an Administration ignoring Supreme Court orders is worse than ignoring lower court orders?

I one-hundred-per-cent think that ignoring lower-court orders breaks the system. Having independent judges is crucial to the design of our system of checks and balances. If the lower courts are ignored, then the system cannot work. And that leads to the accumulation of enormous power in one branch of government.

Is there a way that the Supreme Court can support lower courts without actually presiding over these immigration cases? It seems like this would be going differently if, after the Administration ignored these rulings, the Supreme Court were there to enforce them. But my understanding is that this isn’t how it works.

Right. Our system moves very slowly, and, by design, the Court will only take cases that are brought to it at a particular point with a particular dispute. So it doesn’t speak generally or in the abstract until a case makes it all the way up. That’s part of the problem. That said, there is one very significant tool it can use to signal its disapproval: the presumption of regularity. The courts give the executive branch the benefit of the doubt in many cases, including, for example, when prosecutions are accused of being selective or vindictive. The government benefits enormously from this presumption. At some point, the Supreme Court could do what judges in the lower courts have started to do, which is to hold that these kinds of flagrant violations of court orders mean that the Trump Administration is forfeiting its presumption. And the district courts have already started saying that, which is extraordinary.

I would summarize much of what the Supreme Court has done over the past year as treating the Trump Administration as if it were behaving like a normal Administration.

I think that’s exactly what the Supreme Court is doing. That’s why they have a card that they can still play, which is to no longer treat the Trump Administration normally. They could say, “We recognize these are extraordinary circumstances and that the government is behaving aberrantly, so the courts are going to have to respond.” And I think that’s one of the last things the Trump Administration wants. They want to win these cases, when they get to the Supreme Court, on the merits. So, that’s one of the signals that the Justices could start to send.

But you agree that they’ve certainly not sent that signal so far.

Absolutely not.

I know you’ve been keeping track of how often the Administration has been defying court orders. Are there other cases that we should be paying attention to?

Some of the cases that were most notable for me included ones where Republican-appointed judges called out the Administration for, say, destroying Voice of America against a judge’s orders. Judge Lamberth threatened to hold Kari Lake, who oversaw the network’s parent agency, in contempt for failing to turn over information to the court. Or when Judge Mary McElroy ruled similarly about the Administration’s flagrant disregard for her orders to unfreeze funds appropriated by the Inflation Reduction Act. She’s a Trump appointee. Those are the ones that seem to suggest that the system is under real threat.

Can you think of any previous Administration that has behaved similarly to the current Trump Administration?

I can think of other Administrations that skirted and failed to enforce the law. But it’s hard to think of specific examples in which a recent Administration engaged in flagrant violations of court orders.

We know Administrations have broken the law in the past. I don’t want to sound naïve. But, when they are called before a court and a judge tells them what they have to do, that’s where, broadly speaking, the rubber has met the road.

Yes, exactly. And I think that under other Administrations, the judge might say, “I want to have a hearing because the plaintiffs have proven that the Administration needs to show why it is not in contempt of court.” And normal Administrations would bring themselves into line to avoid a judicial determination that they’re actually acting in noncompliance. That seems to be the qualitative difference with the Trump Administration. They’ve broken through to the next line, which is very unusual on its own terms, but it’s also happening at a scale that’s truly extraordinary. And I think that’s why we have these judges sounding the alarm.

I should say that I did think this defiance was dying down to some degree. But in the past two months, amid this surge in ICE activity, that has changed. It’s even become very hard for us, as a research team, to catalogue all the times the Administration has defied court orders, because it is now happening at such a high number across the country. ♦