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National Review
National Review
18 Mar 2025
Noah Rothman


NextImg:The Corner: The Risk in the Trump Administration’s Contempt Strategy

The courts are likely to have the last word.

Andy McCarthy takes a dim view of the administration’s decision to make a political spectacle out of its display of contempt for the courts. “It is near certain that the administration knowingly defied an order issued Saturday evening by Chief Judge James Boasberg,” he writes. He is unpersuaded by “the administration’s dizzying assertions over the weekend,” in which the president’s subordinates argued simultaneously that the judicial order they ignored was invalid and, also, that they had not ignored the courts at all. It’s hard to avoid the conclusion that the White House believes it can win the news cycle around this issue by casting those who side with the law as covert fans of criminally violent Latin American gangs. Although that “seems like a terrible legal strategy,” McCarthy concludes, it “may be winning politics . . . at least for a little while.”

Indeed, the degree to which the administration and its allies — including El Salvadoran President Nayib Bukele — took to provocatively mocking those who claim that the alleged gang members’ due process rights had been violated is evidence in favor of McCarthy’s theory. Additionally, the Trump administration probably shares his estimation that attacking the courts is a sound political strategy, even if it conflicts with the rule of law.

If recent polling is any indication, the voting public is increasingly apprehensive toward Trump’s policy preference on a range of foreign and domestic issues. The exception to this rule is immigration. Voters are, in the aggregate, grateful to this administration for restoring some sanity to America’s border security policy and its immigration regime. If this administration and its allies have concluded that they have bought themselves leeway to maneuver on immigration, even casting judicial appointees as enemies of civic decency in the effort to tee up Supreme Court cases that might yield more power to the executive branch, Trump and his allies have data on their side.

But there are risks in this strategy insofar as the courts are likely to have the last word. If (when) the administration finds itself on the wrong side of too many judicial rulings on immigration, it will be compelled to defend itself against what are essentially process violations. That will beget complicated arguments around the process. And as the old political shibboleth goes, “If you’re arguing about process, you’re losing.”

In this scenario, the administration’s arguments will, by necessity, become ever more complex and arcane. Meanwhile, their opponents get to retail a far simpler idea: Team Trump regards the separation of powers with abject contempt. Democrats cannot make the argument, but voters may liken Trump’s behavior to that of his deeply unpopular predecessor, who was, along with his party, similarly scornful of the restraints imposed on him by the judiciary. Joe Biden’s fate should be regarded as a cautionary tale.

When it comes to immigration, the Trump administration entered office with a mandate to do the opposite of what Joe Biden did. One of the things the Biden administration did was argue vociferously for its preference to not enforce domestic immigration law. The voting public rejected that approach. Presumably, though, voters did not defenestrate a lawless president because they wanted a different flavor of lawlessness from his successor. The Trump administration should embrace a more prudential approach to enforcing its preferences that do not provide their opponents with opportunities to mobilize their base voters in opposition to extralegal expressions of presidential authority — that is, assuming the affront to basic civic propriety doesn’t do it for you.