With the Trump Administration constantly testing constitutional boundaries and flirting with open defiance of court orders, this is a stress test for our judiciary. Some judges have ably met the challenge by upholding constitutional rights in spite of a barrage of criticism from Trump and members of his administration. These judges and their families have faced serious threats, so it is not an overstatement to say they are risking their lives to defend the Constitution.

There is, however, another group of judges that seem all too eager to clear a path for Trump to continue to turn the presidency into something more like a monarchy. Their view of executive power is almost comically sweeping. In some instances, it seems like they are going out of their way to show Trump how they would perform if they were selected for a Supreme Court seat, should one open up.

A decision out of the D.C. Circuit last week gives an example of what judges in that latter category are doing. First, a little background on the case.

You may remember the confrontation between the Trump Administration and a federal district court judge back in March that raised questions about whether the Administration was edging us toward a constitutional crisis because it would refuse to obey court decisions. The issue arose when, instead of following the usual practice for removing people illegally present in the United States, the Trump Administration proclaimed that members of the criminal gang Tren de Aragua were alien enemies and thus people it claimed were members of that gang could be removed without due process under the Alien Enemies Act. A class of people subject to the order sued to halt their removal as unconstitutional, and the district judge, Jeb Boasberg, issued a temporary restraining order (TRO) prohibiting their removal until he could hear the merits of the case. He clearly told the government that “any plane containing these folks that is going to take off or is in the air needs to be returned . . . [h]owever that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane . . . I leave to you.” In what appeared to be open defiance of Judge Boasberg’s order, the Trump Administration transferred members of the plaintiff class to the custody of Salvadoran authorities.

Judge Boasberg issued an opinion finding probable cause that the federal officials involved in that decision willfully violated his order, which created grounds for a criminal contempt charge. Judge Boasberg gave the government the option of regaining custody of the individuals to purge the contempt violation, but if the government elected not to do that, Judge Boasberg ordered the government to identify the officials who made the decision and stated that the next step would be to pursue contempt charges against them. After Judge Boasberg issued the probable cause order, the Supreme Court vacated Judge Boasberg’s TRO because it concluded that the class needed to bring their case in the Southern District of Texas instead of in Judge Boasberg’s court in the District of Columbia. Judge Boasberg nevertheless retained jurisdiction to pursue the criminal contempt charges because, as Judge Boasberg pointed out in an opinion, the Trump officials, like all litigants, were under an obligation to comply with his orders even while they were pursuing their appeal.

The Trump Administration asked for an emergency writ of mandamus to vacate Boasberg’s probable cause order and halt the criminal contempt proceeding. In mid-April, a divided panel of the D.C. Circuit voted 2-1 to  issue a stay against the contempt proceedings. It took them almost four months to consider the merits. Last week, they granted the writ and vacated Judge Boasberg’s order.

The two judges siding with the Trump Administration are both Trump appointees who worked in the first Trump Administration before their judicial appointments. Judge Greg Katsas was Deputy White House Counsel in the Trump White House before he was nominated to his judicial seat in 2017.  Trump included Katsas on a list of possible Supreme Court nominees in 2020. The other judge, Judge Neomi Rao, served as the administrator of the Office of Information and Regulatory Affairs in the first Trump Administration before she was picked for her seat.  She is also considered a top potential candidate for a Supreme Court seat.

Both of them agreed to grant the writ of mandamus even though that is an extraordinary remedy that should only be granted when there has been a clear abuse of discretion by a district court.  The right to relief must be “clear and indisputable” and requires, as Judge Cornelia Pillard noted in dissent, a petitioner to “point to cases in which a federal court has held that relief is warranted in a matter involving like issues and comparable circumstances.” Yet neither Judge Katsas nor Judge Rao could cite a single case on par with this one. Indeed, they could not even agree with each other about what made Judge Boasberg’s decision clearly wrong.

Judge Katsas thought the Boasberg probable cause order should be vacated because his initial order requiring the administration not to remove members of the class was ambiguous in what it required of the government. It was a strained argument, given the clarity of Boasberg’s language, and not sufficient to meet the high bar of the mandamus standard. Moreover, as Judge Cornelia Pillard pointed out in her dissent, the claim of ambiguity is a “quintessential merits defense” and thus the government can raise it in the action itself. Because mandamus cannot be granted when there are other adequate means to obtain relief, that, too, should have foreclosed this argument.

Judge Rao had a different rationale for her view. She thought Boasberg’s order was unlawful because its “purpose and effect” was to compel the executive branch “to assert custody of the removed gang members.” In other words, she thought Judge Boasberg was engaged in a backdoor attempt to keep jurisdiction on the merits and was not merely pursuing a contempt charge. Tellingly, the government itself did not make this argument, and traditionally appeals courts stick to the claims made by the parties before them. But even if this was properly raised, it is hard to see why giving the government this additional option somehow made pursuing a contempt charge inappropriate. Judge Pillard noted that she was “unaware of any authority, and Judge Rao cites none, providing a clear entitlement to intrude on and limit a criminal contempt inquiry because the court provides an option for the potential contemnors to take voluntary, lawful action to avoid the inquiry.” Moreover, it is hard to see why the remedy for providing this option should be to vacate the entire order issued by Judge Boasberg instead of merely removing this option from it.

Rao and Katsas seemed more focused on preserving executive power than on the high bar for getting mandamus relief. Rao observed that, “[a]lthough executive officials are not above the law and are not ‘immune from punishment for contempt,’ they are very rarely held in either civil or criminal contempt.” That is true, but that is because we have never had an administration so openly defiant of court decisions. Rao, however, seems not to care about the threat to the rule of law from a president who seems uninterested in following court decisions.

Katsas, for his part, seemed motivated by a desire to avoid a more serious clash between the judiciary and executive. He emphasized how hard it would be to bring a criminal contempt action given the executive branch’s inevitable refusal to prosecute itself. If the district court’s decision were to stand, it would therefore “provoke many grave conflicts between the Judicial Branch and the Executive Branch at its highest levels.” Mandamus, in Katsas’s view, would avoid that confrontation. But that is nothing more than a capitulation to the Administration’s strategy of making everything hard. Mandamus is not a conflict-avoidance strategy. On the contrary, it is an extraordinary remedy that is granted only when it is indisputable that the party requesting it has a right to relief.

Katsas and Rao seem to see the world from the perspective of their prior executive branch experience. It is disappointing, to say the least, that neither of them paused to point out the importance of executive compliance with judicial orders. They are clearly aware of the Trump Administration’s disdain for courts and the whistleblower allegation in this very case that Emil Bove–then Principal Associate Deputy Attorney General and now a federal judge–told other people in the Department of Justice that they should consider telling the courts “fuck you.” In an environment like this, how could they not talk about the importance of following court orders?

Judge Nina Pillard was alone in giving voice to this key point: “The rule of law depends on obedience to judicial orders. Yet, shortly after the district court granted plaintiffs’ emergency motion for a temporary restraining order, defendants appear to have disobeyed it. Our system of courts cannot long endure if disappointed litigants defy court orders with impunity rather than legally challenging them.”

Judge Rao’s opinion is particularly disconcerting, and it is hard not to read it as an audition for a seat on the Supreme Court. She expressed no appreciation for the extraordinary circumstances Boasberg was operating under given the administration’s recalcitrance and withholding of information. Judge Katsas at least conceded that “[t]he district court here was placed in an enormously difficult position” that required it “to digest and rule upon novel and complex issues in a matter of hours.” Judge Rao, in contrast, accused Judge Boasberg of trying “to coerce the executive branch to comply with an order it had no authority to enforce.” Her baseless accusation would be troubling enough in its own right, but it is all the more disturbing in light of the fact that the Trump administration has filed a misconduct complaint against Boasberg for his conduct in this case. Trump is waging a war on the judiciary, but Rao seemed unconcerned about what district courts have to deal with.

Judge Pillard was right to call the majority out for doing “an exemplary judge a grave disservice by overstepping its bounds to upend his effort to vindicate the judicial authority that is our shared trust.” Mandamus is an extraordinary step, and the high bar was not met here.

The fact neither Katsas nor Rao could even nod to the importance of judicial authority and compliance with court orders speaks volumes. President Trump undoubtedly heard them.