The dynamics of the court case involving the deportation of 300 Venezuelan immigrants are fast-moving. U.S. District Judge James E. Boasberg is weighing whether the Trump administration violated his instructions when it allowed two planes with the immigrants on board to continue to a detention center in El Salvador. Many are floating the phrase "constitutional crisis" to describe the moment. We sought to further understand the phrase from constitutional law expert and legal scholar John Cioffi, a UCR political scientist. Cioffi clerked for a U.S. district judge prior to his academic career, and is the author of the book "Public Law and Private Power."

Cioffi prefaced his responses by writing: "Our established assumptions and understandings of the United States as a constitutional republic governed under the rule of law are on the precipice of irrelevance. The functioning and continuation of the constitutional order is teetering and in doubt. To conclude otherwise is naive and dangerous wishful thinking. When societies and political systems enter into such as severe crisis, it becomes impossible to predict what the outcomes will be, even in the near future."

Is there a definition of what makes for a “constitutional crisis”?

Cioffi: There is no single definition of what constitutes a constitutional crisis. It is often invoked as a sloppy rhetorical device to label political actions or legal decisions the speaker doesn’t like. That is not the situation we confront now. I would define a constitutional crisis as a conflict over political power that threatens to undermine or destroy the logic and foundational institutional structure of government established by the Constitution. A crisis of this magnitude and gravity poses a potential existential threat to the rule of law, democracy, and ultimately the legitimacy of that state and political order. 

The recent flurry of actions by the Trump administration, many via executive orders and many others (like Musk’s DOGE) without any clear legal basis, violate well-established principles and precedents defining the separation of powers, the constitutional system of checks and balances, and the constitutional duties of the president to “take care” to faithfully execute and uphold federal law. The Executive Branch has directly attacked the powers and prerogatives of Congress, with little to no outcry, let alone an effective response, from elected representatives of either party.  The courts have been left to serve as the institutional constraint on presidential power, but they are weak in the absence of political support from at least one of the other branches of government and, therefore, they have been cautious in their rulings.

Department of Justice attorneys have argued Boasberg's order was verbal, and not written, and therefore carries less power. Is there a distinction between a verbal and a written court order?

Cioffi: I don’t know of any formal legal distinction between an oral and written court order. Oral orders are read into the court record and transcribed into court transcripts. I can imagine a case where this distinction could be valid, such as when a party claims they did not or could not reasonably understand the terms and requirements of an oral order until they received a written version or transcript. That is not the situation going on now. The Trump DOJ has made a highly technical legalistic argument that, in my opinion, is made in bad faith simply to evade compliance. The DOJ’s motive matters.

Is there a precedent for a presidential administration ignoring court orders?

Cioffi: There is no precedent for a president or executive branch official expressly refusing to comply with a federal court order. There is a well-worn story about Andrew Jackson refusing to comply with a Supreme Court decision regarding rights of native Americans under federal treaties, but most historians and legal scholars believe this is apocryphal. Lincoln did not refuse to comply with court orders during the Civil War, nor did FDR at the depths of the Depression and the New Deal crisis.

It is important to note that we are not quite at the point of express non-compliance. The Trump administration has gone right up to the red line, but its often feeble and specious legal arguments justifying executive actions have kept them from stepping over it. But we are very, very close and it is quite possible that we will confront such a direct rejection of judicial authority and the rule of law before long.

If the courts determine their orders are not being followed, what is their recourse?

Cioffi: If the courts and their rulings and orders are ignored, there is really nothing the judges can do about it—and this is likely a reason that they have been very hesitant to get into a direct confrontation with the administration. It certainly has not helped that the Supreme Court has repeatedly assisted Trump by immunizing him from sanction for much illegal conduct. The only formal constitutional remedy for such a dramatic presidential overreach is impeachment, but we have seen—twice—how hard that is to accomplish under current political conditions because of the unwillingness of Republicans to hold Trump to account for the most egregious violations of the law. The flaws in the Constitution and the pathologies of our political age are exposed and coming together in a perfect storm that threatens the foundations of American law, politics, and democracy.

A crisis of this severity does not come from nowhere. It is the culmination of a long period of political dysfunction and decay, often abetted if not spearheaded by a Supreme Court that has opened the floodgates of money in politics, expanded presidential powers, and actively eroded voting rights. The shocking passivity and silence in response to undisguised attacks on the constitutional order and deepening authoritarianism is a symptom and measure of the rot in our civic and political life within and beyond the institutions of government. In a moment of greatest peril, the Constitution, the Congress, and the courts appear to have few fervent defenders.

What a dark, dangerous, and scary time in our history.