Since Donald Trump was first elected President, in 2016, scholars of authoritarianism have warned that American democracy is under grave threat. On various occasions, that threat has been defined as a “constitutional crisis,” which generally refers to a branch of government defying or usurping the constitutional powers of another branch. (One certainly would have occurred had Mike Pence refused to certify the 2020 election results.) In recent weeks, a number of law professors have invoked the term to describe the current moment, in which the Trump Administration has fired government employees who have civil-service protections mandated by Congress, tried to end birthright citizenship despite its guarantee by the Constitution, and released an executive order that postpones the enactment of a law passed by Congress about the sale of TikTok.
As courts issue orders that pause or restrict a number of Trump actions, a more seismic conflict potentially lies ahead. On Monday, a federal judge in Rhode Island ruled that Trump is refusing to fully comply with his order to release federal grant money that the Administration tried to freeze. It remains unclear whether the Administration will respond beyond filing an appeal, which it did, and offering blustery attacks on the judiciary, which it also did. But over the weekend, Vice-President J. D. Vance posted on X, saying, “Judges aren’t allowed to control the executive’s legitimate power.” If the Administration began to openly refuse to comply with federal-court rulings, that would almost certainly qualify as a major crisis.
I recently spoke by phone with Cristina Rodríguez, a professor at Yale Law School and an expert on the separation of powers. During our conversation, which has been edited for length and clarity, we discussed why this moment is so dangerous, whether courts have any power to enforce their orders, and why Congress has chosen not to exercise its constitutional powers.
Is there any history of Presidents ignoring court orders?
The examples that are often pointed to are not quite outright defiance of court orders. They’re showings of disrespect, possibly contempt, for the Supreme Court, but each of the examples generally involves the President resisting the Supreme Court’s reasoning in some way.
After the Supreme Court, in the Dred Scott decision, declared that Black people cannot be citizens of the United States, Abraham Lincoln’s Administration continued to issue passports to Black people, which requires citizenship. So it’s an effective repudiation of Dred Scott, but it was not a rejection of the underlying order. Or take the famous example of Andrew Jackson supposedly saying, “John Marshall has made his decision. Now let him enforce it,” which he probably didn’t actually say, and didn’t involve a court order issued to Jackson. It involved Jackson refusing to enforce a court order against the State of Georgia, which the Supreme Court had found was dispossessing the Cherokees of their land in violation of their status as a distinct people. And so Jackson is showing disrespect for the Court, and of course the federal government later forces the Cherokees out of the Southeast altogether on the Trail of Tears, but it’s not a defiance of a court order issued to Jackson. And the other examples that people raise have a similar quality to them.
What about Lincoln during the Civil War?
So the example that comes up with respect to Lincoln is that he supposedly defied a court order that required him to release John Merryman from detention. John Merryman was a member of a Maryland militia who was detained on the accusation that he was burning bridges to try to prevent Union troops from passing through. In the decision, [Chief Justice Roger B.] Taney, who’s sitting in his capacity as a lower-court judge in the case, says that the detention is illegal. Taney doesn’t actually issue an order demanding that the executive release Merryman. He says that the detention is illegal, and he hopes that the President will abide by his constitutional responsibilities.
And Lincoln doesn’t respond to this but instead delivers a message to Congress, and this is when he makes his famous statement, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” So Lincoln is resisting the determination by Taney, sitting as a lower-court judge, that he has unconstitutionally suspended the writ of habeas corpus. Taney says only Congress can do that, but Lincoln says, In fact, the President can do it, and I have to do it to save the Union. There’s no order that he’s actually defied, but it is a defiance of a judge and his conclusions about the law.
So is it fair to say that in the modern era there are really no examples that would qualify?
I think that’s correct. There are a lot of examples that scholars have written about of agency officials not fully complying with court orders or even of Presidents criticizing the Supreme Court or declaring that the Supreme Court’s opinion is incorrect, but most of the resistance to either Supreme Court opinions or to lower-court judgments really takes the form of slow-walking implementation of a remedy or trying to push the law in the direction preferred by the executive branch. It’s not an outright defiance of the law.
And I wouldn’t say that that kind of slow-walking or incomplete compliance with court orders is widespread or common. It often arises because a court order is difficult to implement when you’re dealing with a technical case. For example, it can be difficult for government officials to reënact a regulation or to change the law, but it’s not unheard of for there to be incomplete compliance because of the nature of the judicial decision, which is to declare that something that was complicated to do in the first place has to be undone.
What remedies do courts have if the Trump Administration doesn’t comply with these judgments?
The courts don’t have a lot of powerful remedies against an executive that is willing to defy their orders. They can certainly remonstrate against it. They can say that it’s a basic proposition that all orders and judgments of courts be complied with, and they can threaten to hold government officials in contempt. That is a remedy that’s useful against agency officials, because it acts as a deterrent, and there are reputational costs to being held in contempt. But if you have high-level officials who are declaring their intention to defy court orders in order to enact their agenda because they believe those orders are unlawful or based on erroneous understandings of the Constitution, I’m not sure that the threat of holding those officials in contempt is that significant. And the reality is that courts don’t often hold officials in contempt. The Supreme Court has only invoked it once, and so it’s a threat that would be difficult to make good on. A lot depends on the psychology of the people who are purporting to resist the court order.
If officials are held in contempt, would it be people at some government agency that the court declared was doing something illegal, or would it be Justice Department lawyers defending this in court? Or someone else?
It depends on the context. Sometimes, courts threaten to hold the lawyers themselves in contempt if there is a belief on the part of the court that the lawyers are not complying with what the court ordered in the first instance. Sometimes, probably more often, the order would run to an agency official, but it can be difficult to know who the right official is to hold in contempt, who the person is who’s actually resisting the implementation of the order. And sometimes there’s no one person. It’s an office or a group of people who are responsible for implementing the order and are unable to. They might hold the agency head in contempt, and if there is a statement by a high-level political official that they intend to or are, in fact, resisting the court order, then perhaps the contempt citation would be issued to that person. But that’s when the stakes become higher and the ability to control the government’s behavior by the court becomes more difficult, because you are going higher up the chain and becoming more visible.
We’ve all seen movies where a judge says, “I’m going to have federal marshals bring this person to my courtroom,” or something like that. What about something of that nature?
That, I think, is highly unlikely, especially because the federal marshals are under control of the executive branch, and I don’t know that a court without the coöperation of the executive could actually make that happen.
So it seems like what you’re saying is that if an Administration is not going to comply and is going to stick to not complying, there’s no kind of power that the court has in and of itself.
Right. If officials really are determined to resist a court order, there is very little the court can do if the threat of contempt does not provide enough of an incentive. The threat of contempt can also come with a threat of fines and imprisonment, but, again, those are very rarely used remedies, especially against government officials because of potential claims of immunity.
What would the immunity be?
There are questions about qualified or sovereign immunity of government officials and whether you can apply fines to them. It is an unresolved, open legal question. I think that courts are reluctant, though, because you start to get into technical questions about whether you can apply monetary fines to government officials. But the larger limit on courts backing up their threats of contempt with some kind of sanction is, again, that it raises the stakes of the contest. And courts are very mindful of the fact that if the executive decides not to comply, there’s very little they can ultimately do. And so it’s really through the power of their reasoning, their insistence that the law has been violated, and then the accumulation of orders from different courts that make whatever illegal action has happened seem like it’s apparent to a lot of different judges that creates pressure on the government to comply.
If a federal court gives a ruling and the Administration ignores it, normally the way this would be brought to higher courts is that the government would appeal. But if the government is not going to appeal, and instead just ignores it, would a higher court have some way of weighing in?
No, not if the losing party doesn’t appeal. I do think, though, that the government in most of these cases has an interest in appealing, because it’s trying to advance its particular understanding of the law, and it might believe that the Supreme Court in particular will support its understanding of the law. And while I can’t obviously speak to the particular calculations that they’re making, I think in many of these cases, it’s in the government’s interest to appeal the orders and not have to resort to defiance.
Right, although I was wondering about whether they might start ignoring federal court orders because it wouldn’t have the same political impact as ignoring the Supreme Court.
That seems possible, because the higher up you go, the more visible the confrontation, the more likely that there’ll be political pressure to accede to what the court says. And I do think that even an Administration that might take a position that it’s not bound by a court’s judgment will still care about political pressure.
What are you most concerned about and paying attention to in the next few weeks?
There are two dynamics that I think are really important to pay attention to. The first is whether high-level officials are on the brink of actually defying court orders, because I think that that is a step toward autocracy where officials don’t recognize the law as constraining their behavior, and that can result in arbitrary or abusive rule and the disappearance of checks and balances. And it seems like some officials are stepping close to that line, but they haven’t declared their intention to defy court orders. I think that whether that happens openly and brazenly is something to watch for. It is notable that there is already a suggestion that in reality they’re not fully abiding by court orders, and it could be because it’s complicated to do that, or it could be because they are engaged in forms of resistance. Do the court orders that they purport to be applying, are they actually being adhered to in practice? And are the things that courts are declaring illegal being undone quickly and appropriately?
The second thing that I would be looking out for is what kinds of arguments the President and high-level officials are making about their power. One of the things that is the most concerning about the freezing of federal funds is that it appears to be predicated on the view that the President is not bound by the decisions that Congress makes to appropriate money to fund government programs or agencies. And that position effectively turns Congress into an advisory body, and that’s a rejection of a basic premise of the Constitution, and you might even call it a suspension of the Constitution, because it treats Congress not as a coequal branch with powers that the executive must abide by but as a body that issues suggestions to the executive branch. And I think that’s part of a broader pattern of lawlessness, ignoring laws that have been enacted by Congress, firing civil servants, redefining birthright citizenship, but the rejection altogether of a core congressional power as something the executive has to respect is, I think, an existential kind of threat to our constitutional order.
We haven’t talked about Congress much in this conversation. For anyone who’s followed recent American history, Congress has tended to be the least important branch, or the one that has chosen to exercise its power the least. What role could Congress play if Congress were something other than what it seems to have become?
So if Congress were willing to defend its prerogative as a branch as opposed to being primarily allied to their party and the President of their party, then they could engage in oversight. And if you have the majority bringing in executive-branch officials to engage in oversight, that provides a public platform to reveal what’s happening, to put them under pressure to abide by the law, and to get answers about what’s motivating their actions inside the executive branch. They could also enact laws that countermand what the executive is trying to do, and by doing so, exert another form of pressure and legal constraint.
The problem, of course, is if you have an executive that believes that it can ignore laws that are inconvenient or that it thinks are unconstitutional, or if it thinks that it has the power to redefine laws as they’ve long been interpreted, it’s not obvious that Congress reacting will have any kind of constraint on the executive. But if Congress acts by engaging in oversight and enacting laws that are responsive to what’s happening, that makes the conflict much more publicly visible, much more likely that the people will come to support Congress’s pushback, which makes it much more difficult politically for the executive to break the law.
The courts can’t save Congress from itself. Congress has to stand up for itself, and if it’s not willing to do that, then the constitutional system is in some trouble. And the courts can blunt some of what the executive is doing, and public opposition can blunt some of what the executive is doing to the extent that it’s illegal or inconsistent with basic norms of governance. But if Congress won’t stand up for itself, then our supposed system of checks and balances no longer works, and the Constitution looks like the proverbial parchment barriers as opposed to a real system that constrains power.
What are you hoping happens here? Do you want the Supreme Court to weigh in in the hope that they will clearly say what the law is? Or are you concerned that the Roberts Court, given some of its history around executive power, actually presents its own danger?
That is always a difficult question to answer, because a lot depends on what the Court ultimately says. I do think that some of the actions this Administration is taking are so sweeping and significant that it is necessary for courts, including the lower courts, to weigh in to try to discern what the limits might be and to identify where the executive branch is breaking existing law. It could be that once those cases get all the way up to the Court, the Supreme Court will say that those laws themselves are unconstitutional. But I don’t think that will be the case in many of these lawsuits. For example, I don’t think that the Supreme Court will say that the executive can impound funds however it wishes and can violate the terms of the Impoundment Control Act, because that would be significantly undermining a basic power of Congress, the power of the purse.
I am a little less certain about what the Court will say about all the laws that protect the civil service, both in hiring and firing. But I don’t think that the existing precedents yet suggest that the Court is going to say the civil service is unconstitutional. So I think that it would be valuable for the Court to clarify the line between officials who can, in fact, be removed at will and those who can be insulated by Congress. But these are all predictions, and those predictions could be incorrect, and we could end up with a Court that validates the constitutional vision that this Administration is offering. At that point, I think we have a very different Constitution than the one I thought we had and that has been in place for more than two hundred years. ♦
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