The Trump administration certainly seems to be encouraging speculation over whether it will abide by America’s judiciary in the face of multiple legal challenges to its executive orders.
The number of lawsuits against the administration seems to grow daily, currently including 18 cases where the courts have frozen aspects of Trump and Elon Musk’s agenda—including the attempted dismantling of the U.S. Agency for International Development, the rollback of National Institutes of Health grants and even Trump’s signature MAGA siren call to end birthright citizenship, a right enshrined in the plain language of the U.S. Constitution.
In apparent response to this string of losses, Musk has demanded “an immediate wave of judicial impeachments” and Vice-President J.D. Vance—a graduate of Yale Law School himself—argued on social media that “Judges aren’t allowed to control the executive’s legitimate power,” a statement at odds with what he should have learned in his first-year studies.
Over the weekend, Trump himself weighed in, writing on Truth Social that “he who saves his Country does not violate any Law”—a potent echo of President Richard Nixon’s claim to journalist David Frost that “When the President does it, that means it is not illegal.”
These statements are, at this point, hyperbole; none of the cases have been fully decided yet even at the trial court level. Musk’s demand for judicial impeachment merely showcases his lack of understanding of American civics. (Not only is the impeachment process cumbersome and unwieldy but an actual wave of them would leave Congress no time to do anything else.) Vance’s statement, a disservice to his law degree, hangs entirely on the word “legitimate” while ignoring the fact that it’s the courts that decide the legitimacy of the President’s actions, not the President.
But even musings that the President may not need to answer to the courts deserve serious scrutiny.
Many of these cases, if not all, will be appealed after the trial courts make initial decisions. The likelihood is high that the Supreme Court will end up weighing in. All of this threatens to expose the dirty secret of the American rule of law: That judicial decisions are not self-enforcing. It all boils down to the question of who would enforce a judicial ruling against the President.
So let’s suppose that the White House did ignore a court order. What could the courts do?
The oft-repeated apocryphal story of President Andrew Jackson responding to a Supreme Court ruling by then Chief Justice John Marshall which recognized the Cherokee Nation as an independent political community—“let’s see him try to enforce it”—is useful as an illustration. (Jackson’s subsequent actions were lawless and tragic, as he used federal troops to evict the Cherokee people from their lands, forcing them into the deadly migration known as “The Trail of Tears.”)
In the Trump era, then, let’s assume a federal judge orders an agency to stop firing federal workers, but the agency keeps doing so. It’s hardly a far-fetched example. The court would then threaten to hold the agency and/or its head official(s) in contempt. To start that process, the court would schedule a “show cause hearing,” during which the agency would have to show cause why it should not be held in contempt. If the agency failed to convince the judge accordingly, then that judge could impose a contempt finding, accompanied by enforcement sanctions like jail time or fines.
But unlike contempt sanctions imposed against a private citizen, sanctions against an agency present a unique challenge. The prospect of a jail sentence is often raised as problematic in the event of the President defying the courts, because it’s the executive branch—acting through the U.S. Marshal Service, which falls under the U.S. Department of Justice—that would enforce the punishment. In that situation, marshals could refuse to obey the court to jail the offending official.
Financial penalties levied against an agency also seem like a toothless punishment. As set forth by Yale Law School Professor Nicholas Parrillo, who has previously assessed judiciary responses to federal disobedience, the President could order the Bureau of Fiscal Service (yes, the system to which Elon Musk’s DOGE bros have gained access) to pay the fine out of the Judgement Fund—U.S. taxpayers’ money held at the Treasury for judgments and settlements against the federal government. Congress could also simply appropriate more money for the agency to make up for the fines. (And to further complicate matters, there is the legal question of whether sovereign immunity doctrine might protect the federal government from any sanctions.)
But while these scenarios seem like open invitations to the President to defy court orders, the fact is that they have yet to come to pass. When push comes to shove, the executive Branch and its federal agencies have always followed court orders. Realistically, compliance in this context can afford the administration the opportunity to do a lot of what it wants to do before any given matter comes to a head in court.
Citizens across the country can pressure their representatives in Congress to act, to exercise oversight and protect the integrity of their appropriations process. Individual acts of resistance can also be significant.
One such example arose during the Watergate era when Nixon’s Attorney General and Deputy Attorney General quit rather than follow his orders to fire the Watergate Special Counsel. That incident—instrumental in the downfall of Nixon’s presidency—pales in comparison to this past week, when over a half-dozen career prosecutors at the Justice Department resigned rather than carry out a order to dismiss criminal charges against New York City Mayor Eric Adams in an apparent quid pro quo designed to pressure Adams into helping Trump enforce anti-migrant deportation policies.
If we do reach a point where Trump does defy final court orders, including ones from the Supreme Court, then do not expect any salvation from the “separation of powers” doctrine. Though widely understood as a foundation of American government, the Constitution enumerates separate authorities for the Executive, Legislature, and Judiciary but contains no explicit “separation of powers” language. The phrase itself arises from a political theory first put forth by the 18th-century philosopher Montesquieu describing a system where no one branch of government is more powerful than the other. Its only real power is deterrence.
Much like the “mutual assured destruction” theory of nuclear deterrence utilized during the Cold War, the system of separate branches of power means that each branch can theoretically destroy the other. Thus, in a fight with the Executive, Congress could theoretically defund the Executive Branch; the Judiciary could declare it to be acting lawlessly. It’s not quite a fair fight though since the Executive could then send Seal Team Six to assassinate both its rivals. But like all-out nuclear war, such scenarios have no true victor because democratic governance would die in the ensuing fallout.
And that’s not a “constitutional crisis.” That’s the end of America.
