As late as Sunday afternoon, some travelers ensnared by President Donald Trump’s executive order were still being held in airports without access to legal counsel, according to their attorneys.
Following a court challenge by the American Civil Liberties Union, a federal judge issued a temporary stay of removal Saturday night, saying that Trump’s executive order barring arrivals from seven mostly Muslim countries could not apply to anyone in federal custody or already bound for the United States.
U.S. Customs and Border Protection officials began releasing people from airport holding rooms soon after. A second federal judge also ordered that travelers being held at Dulles International Airport be given access to attorneys.
However, lawyers reported some border agency officers flatly refusing to follow the court orders, at times explicitly citing orders from higher-ups.
Attys at Dulles with a fed court order entitling them to see detainees told by CBP "it's not going to happen" Attys seeking contempt order
— Damon Silvers (@DamonSilvers) January 29, 2017
Customs agents at Dulles told lawyers they were ordered by "upper mgmt" to not provide info/access – that is direct violation of court order
— Matthew Rosenberg (@AllMattNYT) January 29, 2017
Trump’s order and ambiguous direction from the Department of Homeland Security related to the court orders have raised the specter of a full-on constitutional crisis, in which officers acting on the president’s authority simply ignore an order from the judiciary.
The sudden order from Trump’s office — his chief of staff Reince Priebus has said it was a strategic surprise — left rank-and-file border agency officers scurrying to figure out how to enforce it. The court rulings only added to the confusion; rather than direct officers to comply with the courts, the White House issued a statement that its order remains in effect.
The official word from the Department of Homeland Security, Customs and Border Protection’s parent organization, wasn’t much clearer. In a statement issued Sunday, the Department of Homeland Security promised to both “comply with judicial orders” and “continue to enforce all of President Trump’s Executive Orders” — two apparently contradictory courses of action.
With a strength of more than 40,000 officers, including blue-shirted customs officers and the green-shirted Border Patrol agents, Customs and Border Protection is the nation’s law enforcement agency. (Trump has already said he wants to hire thousands more officers.)
On Sunday afternoon, dozens of lawyers assembled at Dulles, pressing border agency officers to speak with anyone detained at the airport. Damon Silvers, an AFL-CIO attorney who spent hours observing and tweeting from the scene, said it remained unclear whether anyone is left in custody. But lawyers, and even members of Congress, have been turned away, contrary to the judge’s order.
Rep. John Lewis after an immigration official declined to say how many are being detained: "Why don't we just sit down and stay a while." pic.twitter.com/uKx5hSZObJ
— Jeremy Redmon (@JeremyLRedmon) January 29, 2017
Silvers said the situation raised legal questions similar to those surrounding the federal court order allowing James Meredith to enroll at Ole Miss in 1962, overruling Mississippi segregation laws. President John Kennedy dispatched 500 U.S. marshals and then the Army, to carry out the court order over the objection of state officials.
In Virginia, U.S. District Judge Leonie Brinkema didn’t mention the U.S. Marshal Service, but the judges in Boston and New York both directed marshals “to take those actions deemed necessary to enforce” the orders. But if there’s any discussion within the Marshal Service related to enforcing the court orders, spokesman Dave Oney said, “I haven’t heard anything about that.”
“Right now, at this point there’s no action that we’re taking,” said Chief Jim Elsik in the Marshals’ Eastern District of New York office. “That’s a discussion that we’re going to have with the judge in concert with our headquarters in Washington.”
The question of “judicial supremacy” — whether the president should be bound by the courts — has most recently been the subject of theoretical debate, including at the Heritage Foundation and the Federalist Society, two conservative groups that Trump consulted as he drafted a list of Supreme Court nominees. Until now, these were theoretical questions; in 2015, an editor at Reason considered how, if elected, President Hillary Clinton might subvert the Supreme Court’s Citizens United ruling. As a presidential candidate in 2011, Newt Gingrich pledged to disobey “dictatorial and arrogant” federal judges on national security.
There is some historical precedent. President Andrew Jackson, whose portrait graces Trump’s golden Oval Office, defied Chief Justice John Marshall’s court in 1832, after a ruling that would have protected the Cherokee Nation from a land grab by officials in Georgia. The ruling would have protected Native Americans’ claims to their land, but Jackson refused to enforce it. To a friend he dispatched to negotiate with the Chickasaw Nation, Jackson wrote, “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” And although Abraham Lincoln once said it “would be revolution” to disregard the Supreme Court’s decisions on constitutional questions, he may have defied the court, too, to suspend habeas corpus in the early days of the Civil War.
Ralph Basham, who served as commissioner of Customs and Border Protection during the George W. Bush administration, told Reveal from The Center for Investigative Reporting that the front-line officers deciding who gets to visit detained travelers have to rely on orders from their superiors. By issuing such a blunt executive order, followed by a muddled response to the courts, the Trump administration has complicated the already difficult job of screening people entering the country.
“I’m at a loss to say how (Customs and Border Protection) should approach this,” Basham said, “but I truly feel for the acting commissioner over there and the challenge he has with the front-line troops, trying to come up with a protocol.”
Basham said the Trump White House can’t ignore the federal agencies that have to implement his orders.
“The folks at the White House need to be vetting (their plans) through the agencies,” he said. “All of this was avoidable. They could have gotten the president what he wanted, but they should have engaged with Justice, (the Department of Homeland Security). It’s a mess.”
Instead of preparing with the agencies for another 72 hours, the Trump administration left its plans vulnerable to the court-ordered delays, he said.
“This is not their first rodeo,” Basham said about those federal agencies. He likened the rollout of the executive order to the hasty response with some actions after 9/11 and the avian flu crisis in 2006. But because the White House controlled the timing of the order issued Friday, he said, such confusion was entirely avoidable in this case.