Are we heading toward a full-blown constitutional crisis? For the first time in decades, the country is wrestling with this question. It was provoked by members of the Trump administration, including Russell Vought, the influential director of the Office of Management and Budget, and Stephen Miller, the deputy White House chief of staff, who have hinted or walked right up to the edge of saying outright that officials should refuse to obey a court order against certain actions of the administration. President Trump has said he would obey court orders — though on Saturday he posted on social media, “He who saves his country does not violate any law.”
Some have argued that if the administration is defiant there is little the courts can do. But while the courts do not have a standing army, there are actually several escalating measures they can take to counter a defiant executive branch.
The fundamental principle of the rule of law is that once the legal process, including appeals and stay applications, has reached completion, public officials must obey an order of the courts. This country’s constitutional traditions are built on, and depend upon, that understanding.
A profound illustration is President Richard Nixon’s compliance with the Supreme Court decision requiring him to turn over the secret White House tape recordings he had made, even though Nixon knew that doing so would surely end his presidency.
If the Trump administration ignores a court order, it would represent the start of a full-blown constitutional crisis.
The courts rarely issue binding orders to the president, so these orders are not likely to be directed at President Trump personally. His executive orders and other commands are typically enforced by subordinate officials in the executive branch, and any court order — initially, it would come from the Federal District Court — would be directed at them.
If officials refuse to comply, perhaps at the direction of the president, the courts would be likely to issue further orders, with increasingly strict and specific requirements such as a due date.
Traditionally, courts have not rushed to invoke the most aggressive measures in response to executive branch resistance, but have moved gradually, as a form of negotiation. At the end of January, for example, a federal court in Rhode Island issued an order that directed the release of federal grant funds the administration had frozen. Last week, the court declared that its earlier order was clear and unambiguous, that there were no impediments to the government’s compliance with the order, and that the government must immediately restore the frozen funding. But it did not yet take any disciplinary steps to induce compliance.
If a court is met with extended and clear recalcitrance, it will most likely take that as definitive evidence that the government is intentionally refusing to comply. Government lawyers who make misrepresentations to a court about the government’s actions could face serious professional discipline, including potential disbarment. So, too, could any other administration officials who are lawyers and participate in defying a court order.
The court may consider holding the noncomplying officials in contempt of court. Merely threatening executive officials with contempt can sometimes be enough to induce sufficient compliance to de-escalate the situation.
In our political environment, the prospect or reality of a contempt threat might not bring any sense of shame or rebuke; some officials might instead consider it a badge of honor or a mark of loyalty.
If the noncompliance persists, the courts can issue fines, which could be directed at the agency involved or against specific officials. The courts can also bar officials from seeking indemnification. No fine would be financially meaningful to Elon Musk, of course, but, like the president, he must implement his policies through subordinate officials. The courts could also order aggressive measures in the underlying litigation to punish the government.
A more consequential step is for courts to hold the offending officials in criminal contempt and to refer the matter to the relevant United States Attorney’s Office for prosecution. Mr. Trump might direct the attorney general to prohibit federal prosecutors from proceeding with any contempt charge, but one way around that problem is for the court to appoint private outside counsel to prosecute the contempt charge, a practice the Supreme Court approved in a 1987 decision. Still, there are limits: The president retains the power to pardon anyone ultimately convicted of criminal contempt, and President Trump has not been shy about using it.
Even in the absence of a finding of criminal contempt, a federal court can enforce a finding of civil contempt by ordering the immediate jailing of the offending officials to induce compliance with the court’s order. In 2015, a Federal District Court jailed for five days the clerk of a rural county in Kentucky who refused to comply with a court injunction concerning issuing same-sex marriage certificates. And in a famous case during the Truman administration, the federal courts were on the verge of ordering the secretary of commerce jailed when a negotiated resolution of the dispute was worked out.
A finding of civil contempt is not a criminal conviction, and judicially imposed sanctions to enforce civil contempt (including fines and jailing) are not criminal sentences — so they are not covered by the president’s pardon power. Still, to carry out the jail order, some federal law enforcement agency with arrest authority would need to be involved. Most likely, that would be the United States Marshals Service, which would be responsible for executing a court order to imprison a federal official. The marshals are part of the Justice Department, that is, part of the executive branch. Federal law specifies that “the primary role and mission of the United States Marshals Service” is to provide for “the security and to obey, execute, and enforce all orders of” the federal courts.
Here again, the president may raise the stakes by ordering line-level U.S. marshals not to enforce the court order, or direct the head of the Marshals Service or the attorney general not to issue such an order.
Yet even that question reveals something important about the dynamic at work here. Executive branch defiance of the courts is not a simple, one-time-only decision. A prudent court will give the government officials covered by its order multiple opportunities to comply with the order, and will escalate things only when the officials by their own actions (or inaction) make their defiance clear.
The other side of that same coin is that as matters escalate, a presidential administration determined to flout court orders will have to do so repeatedly and publicly and will need to continually expand the circle of federal officials who are in violation of the law — perhaps to include even the U.S. marshals themselves.
If the confrontation continues, it will go beyond the Federal District Court and work its way through the appeals process, with some cases ultimately reaching the Supreme Court. For an official to stand in continued, open defiance of a court order, he might have to defy the entire judicial system.
At that point, there is no question we would be in a constitutional crisis, and the courts could well run out of options. Here, the resolution of an ultimate confrontation between the branches, which would dominate the news, would also depend on the response of a range of actors in the public more generally.
An administration that was openly ordering more and more government officials to flout the courts and the law would most likely face significant costs outside the judiciary. The U.S. economy enjoys a “safe harbor premium.” The longstanding stability and certainty of our independent judicial system guarantee reliable protection of contract and property rights, which in turn enables long-term investments by the U.S. business community and attracts immense foreign investment in the economy.
The chaos precipitated by so radically destabilizing the judiciary and the rule of law might well have serious economic consequences, including in the stock markets. Foreign investment would likely flee the country; the dollar would fall. This would bring added pressure on the White House to comply with the courts and on Congress to demand such compliance.
Judicial independence and the stability of the rule of law take generations to establish in a credible, durable way. A foolish administration that seeks to defy the courts for short-term political gains or simply to show its “dominance” of other institutions would soon seek shelter from the whirlwind it would undoubtedly unleash.
Trevor W. Morrison is a legal scholar and former law school dean who teaches and writes about the constitutional separation of powers. Richard H. Pildes is a legal scholar who analyzes the intersection of politics and law and how they affect our democracy. This article originally appeared in The New York Times.
