Illustration by The Atlantic. Source: Getty.

America seems to be waiting for a clear indication that the country is in a constitutional crisis. Perhaps President Donald Trump will say, "I am defying a court order, and good luck trying to do anything about it." But short of that, America's constitutional crisis was always going to be a bit subtler -- and that subtler crisis is already here. The administration is already flouting court orders. It's just that, rather than admitting so, executive-branch officials are saying one thing but doing another.

We have spent the past few months surveying the second Trump administration's practice regarding court orders and reviewed dozens of cases. We observed a clear pattern: The administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. We call this "legalistic noncompliance," a term intended to capture how the administration has deployed an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight. It is a powerful strategy, as it obscures the substance of what the administration is doing with the soothing language of the law.

Although the country is not yet six months into the second Trump administration, already many examples of the phenomenon have emerged. Consider some of the arguments that have come up in the litigation over the Alien Enemies Act, which involves the president's attempt to designate certain Venezuelan nationals as "alien enemies" and imprison them in El Salvador with little judicial process. At the initial hearing in the first case challenging the AEA designation, the district court ordered the administration to turn around any planes that had departed for El Salvador. The judge told the government that any people on a plane "that is going to take off or is in the air" must "be returned to the United States. However that's accomplished, whether turning around a plane or not [dis]embarking anyone on the plane." The court also directed the government not to remove any additional people from the U.S. under the AEA proclamation. The government followed neither order. Instead, it landed at least two planes in El Salvador and transferredtransferred its involuntary passengers to a mega prison.

The government nonetheless insisted that it had complied with the court's orders. The government first argued that the judge's directive to "not remove" anyone else pursuant to the AEA declaration merely prohibited the government from taking people from within the borders of the United States to anywhere outside of those borders. Because the planes had already left U.S. airspace at the time of the order, they were not "removing" anyone. That argument relied on a technical, legal parsing of what it means to "remove" someone. It was also utterly baseless. In various immigration and migration matters, to remove someone means to take them to another country where they are then allowed to enter. But more fundamentally, the theory totally ignored that the judge had directly said to turn the planes around, and his emphasis on the importance of the United States not relinquishing custody or control of people to El Salvador.