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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