Will President Trump and his administration defy court orders?

 Erwin Chemerinsky, Dean of Berkley Law School at the University of California, writes in The New York Times:

It is not hyperbole to say that the future of American constitutional democracy now rests on a single question: Will President Trump and his administration defy court orders?

Federal judges have issued more than a dozen temporary restraining orders and preliminary injunctions against Trump administration actions. But it is unclear whether the government will comply, and in at least two cases, judges have said their orders were ignored.

The Trump administration is already facing at least 100 legal challenges. Two recent court orders no doubt will test Mr. Trump’s patience.

The Supreme Court this week upheld the authority of a Federal District Court judge in Washington to lift a Trump freeze on nearly $2 billion in foreign aid appropriated by Congress. The government had missed a deadline set by the judge to send out the money, which Mr. Trump had blocked on his first day in office. And on Thursday, another federal judge, in Rhode Island, extended an order forcing the Trump administration to release billions of dollars in congressionally approved funds for nearly two dozen states and the District of Columbia. The judge said the White House had “put itself above Congress” in blocking the money.

But the hard truth for those looking to the courts to rein in the Trump administration is that the Constitution gives judges no power to compel compliance with their rulings — it is the executive branch that ultimately enforces judicial orders. If a president decides to ignore a judicial ruling, the courts are likely rendered impotent.

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Perhaps the threat of flouting court orders, suggested by Mr. Trump, and his vice president, JD Vance, and some of his nominees, is a way to put pressure on courts to treat the Trump administration favorably. Trump allies have also been pressing for the impeachment of judges who rule against his administration’s policies. Elon Musk wrote recently on his platform X that “the only way to restore rule of the people in America is to impeach judges” and “we must impeach to save democracy.” Mike Lee of Utah, a Republican on the Senate Judiciary Committee, said on social media that “corrupt judges should be impeached and removed” and that rulings against the administration gave the impression of a “judicial coup.”

Removing federal judges because of disagreement with their rulings would be unprecedented. The Constitution allows for impeachment only for “treason, bribery, or other high crimes and misdemeanors.” There is no plausible basis for claiming that standard has been met. And it is risible to see conservatives, who repeatedly went to court to enjoin Biden and Obama administration policies, now saying that the judiciary should not review executive branch actions. All of this is about an administration that does not want to be constrained by the Constitution, laws or courts.

It is unsettling even to be asking whether the president would defy a court order. Throughout American history, presidents have complied with mandates from the courts, even when they disagree. In the 1930s, the Supreme Court struck down many of the New Deal programs of Franklin Roosevelt. He was angry and proposed expanding the size of the Supreme Court to uphold his initiatives, but never went as far as defying the rulings. When the Supreme Court declared unconstitutional Harry Truman’s order to seize steel mills during the Korean War, a major blow to his presidency, Truman, too, was angry, but he complied with the decision.

Similarly, when the court ordered Richard Nixon to turn over the White House tapes, he did so even though it meant the end of his presidency. More recently, when courts blocked Biden administration policies — from student loan relief to vaccine mandates — the White House complied.

At times, there have been disputes between courts and agencies over compliance with judicial orders. In a 2018 Harvard Law Review article, the Yale law professor Nicholas Parrillo wrote that “the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively.” In part, this has been because agencies may lack the money, personnel or information they need to comply.

But there are no definitive instances of presidents disobeying court orders. The line attributed to Andrew Jackson about the chief justice, that “John Marshall has made his decision, now let him enforce it,” is likely apocryphal. Purportedly about a Supreme Court ruling that Georgia could not enforce its laws against whites on Cherokee land, the quotation did not appear in print until long after Jackson’s death. And, in fact, the court order was directed at Georgia, not Jackson or the federal government. In addition, modern scholarship has undermined the story that Abraham Lincoln defied an order from the chief justice invalidating a suspension of habeas corpus during the early days of the Civil War.

Thus far, the Trump administration has given conflicting signals as to whether it will defy court orders. On Feb. 11, Mr. Trump said, “I always abide by the courts, and then I’ll have to appeal it.” And that same month, the acting solicitor general, Sarah Harris, wrote in a footnote in a brief to the Supreme Court: “The executive branch takes seriously its constitutional duty to comply with the orders of Article III courts.”

But just one day prior, Mr. Trump posted on social media, “He who saves his Country does not violate any Law.” A week earlier, Vice President JD Vance posted, “Judges aren’t allowed to control the executive’s legitimate power,” implying that the president decides what is “legitimate.” This follows a history of assertions by Mr. Vance suggesting that the president need not comply with adverse court rulings. And while this did not involve a court order, in January, in one of his first acts in office, Mr. Trump signed an executive order to delay enforcing a federal ban on TikTok, even though that ban had just been upheld by a unanimous Supreme Court.

The reality — and Mr. Trump and those around him know it — is that he could get away with defying court orders should he, ultimately, choose to do so. Because of Supreme Court decisions, Mr. Trump cannot be held civilly or criminally liable for any official acts he takes to carry out his constitutional powers.

Those in the Trump administration who carry out his policies and violate court orders could be held in contempt. But if it is criminal contempt, Mr. Trump can issue them pardons. Although civil contempt can involve being jailed until the person complies with the court order, that is enforced by the United States marshals, who are part of the Department of Justice and thus under the president’s control.

Defiance of court orders could be the basis for impeachment and removal. But with his party in control of Congress, Mr. Trump knows that is highly unlikely to happen.

If the Trump administration chooses to defy court orders, we will have a constitutional crisis not seen before. Perhaps public opinion will turn against the president and he will back down and comply. Or perhaps, after 238 years, we will see the end of government under the rule of law.

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