How the United States constitutional crisis is intensifying

And what the US government should realise about a cavalier approach to obligations

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At the beginning of the current constitutional crisis in the United States there was a word, and that word was “Oopsie”.

This was a word in the social media post of the El Salvador president when the first deportations took place from the United States.

This was then re-posted by the actual United States Secretary of State from his personal account.

This re-post signified that at the top of the United States executive there was not only a lack of seriousness about court orders but a willingness to show that lack of seriousness publicly.

And it was that moment that it became plain that there was not only a tension but a contradiction between the attitudes of the executive and the judges.

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Others may date or time the crisis from another starting point - there is no great science in this, and different people can have different views. Just like different people can have a view on when a storm starts, though there will be a point where most people would agree when a storm is happening.

Most people, who have an opinion about such things, would probably accept there is now a crisis in the constitutional arrangements of the United States.

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Of course, the United States government has not publicly said “we are not acting constitutionally”.

As the eminent jurist Mandy Rice-Davies might have put it: they wouldn’t do, would they.

It is instead for those involved and looking on to assess whether certain conduct is constitutional, or not - and whether there is a constitutional crisis, or not.

And from the perspective of this English constitutional law blog there is now not only a crisis, but a crisis which is intensifying.

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There are broadly two strands to the current crisis in respect of the deportations to El Salvador. In general terms they can be seen as the internal and external strands.

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The internal strand is about the compliance of the United States government with the order of the federal court that the planes should have turned round at the time of the initial restraining orders.

Although the government has successfully appealed whether those orders were appropriate - and that a different legal remedy should have been used - the temporary restraining orders still should have been complied with.

In the United States as in the United Kingdom the orders of the court are to be complied with, regardless of whether the party affected thinks they are wrong or unlawful.

The judge dealing with this case has now stated that there is probable cause to show that the United States government was in contempt of the court in refusing to turn the planes around.

The executive must now either “purge” (wonderful word) their contempt or provide information, which may in turn lead to sanctions.

At this stage it does not seem clear whether any sanction - if it is for criminal contempt - is within the scope of things that can be pardoned by a president.

Few if any have a good idea of what will happen next.

And as this blog has averred before, that is in the nature of crises: if one can forecast what will happen next then it is not a crisis.

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The second strand is about the case of one particular individual, Abrego Garcia, who was wrongly and unlawfully deported to El Salvador.

He is now in the infamous mega-prison.

The United States say that it is not within its power to order his return, as he is now outwith the jurisdiction.

El Salvador say that they do not have the legal power to insist that the United States accept his return.

In a strict, narrow technical sense, both these propositions are probably correct - and, if so, that is intentional.

It seems the whole arrangement has been engineered - indeed gamed - so that the unfortunate individuals fall between two jurisdictional stools.

But a federal court has ordered that the United States “facilitate” his return, and this order has been unanimously approved by the Supreme Court.

This blog has already explored the issues about such injunctions generally - and what the word “facilitate” would mean in particular.

Yet whatever the word means in this context, it must mean something.

The United States government, however, ain’t doing nothing.

Even if (somehow) there is no formal mechanism in the agreement with El Salvador for the return of individuals (and the government are refusing to disclose this “classified” agreement), few would doubt that a formal request could be made and an offer of assistance made.

But the government is instead coming up with increasingly implausible definitions of “facilitate”.

Again, as with the internal strand, it is not clear what will now happen and how this matter will now unfold.

And again, that is because the United States is in a constitutional crisis.

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Crises - constitutional or otherwise - are not necessarily dramatic, at least not immediately.

The effects of a crisis can be profound but quiet: a general dislocation leading to unpleasant ongoing consequences.

So there may not be grand gestures and civil unrest and conflict (though there can be). But there will be destabilisation, of one kind or another.

And that destabilisation may not be that which the government is hoping for.

The United States government should bear in mind one thing about being cavalier in its attitude to the constitution.

Such an attitude did not end well for the cavaliers.

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