If the Trump administration defies the courts, what can be done about it?
There’s a popular, albeit apocryphal, quote often attributed to President Andrew Jackson after the Supreme Court handed down its opinion in the 1832 case of Worcester v. Georgia. Written by Chief Justice John Marshall, the court dismissed a conviction of a Native American, holding that states had no criminal jurisdiction on Native America lands.
“John Marshall has made his decision; now let him enforce it!” a displeased Jackson reportedly said. The authenticity of the quote, which was attributed to Jackson decades after his death, has long been in doubt and was possibly even moot. After all, the Supreme Court ruled that it had no jurisdiction—as such, there was nothing to enforce.
Nevertheless, the quote, real or not, illustrates a fundamental problem within the American system of government. What happens when one branch simply ignores the checks and balances enshrined in our Constitution and does what it wants? Specifically, if the judiciary issues a ruling and the executive branch refuses to obey it, what can be done about it?
Recent actions by the Trump administration have brought this issue back to the forefront of American consciousness. The Washington Post found in July that Trump officials had either demonstrated noncompliance or were accused of doing so in one out of every three rulings against the administration.
For instance, in March, the administration was accused of ignoring a federal judge’s order to turn around two planes deporting alleged Venezuelan gang members. The next month, the Supreme Court ruled that the administration must facilitate the return of Kilmar Abrego Garcia, a man who was mistakenly deported to El Salvador. The administration responded that it was not obligated to seek his release and it was up to El Salvador if they wanted to let him go.
The president has also defied or challenged established Supreme Court precedent. In August, Trump signed an executive order criminalizing flag burning, despite two Supreme Court decisions (Texas v. Johnson and United States v. Eichman) that explicitly declared that it was protected free speech. Meanwhile, in December the court will hear the case of Trump v. Slaughter, a case arising out of the president’s decision to fire Federal Trade Commissioner Rebecca Slaughter. The court will determine whether Humphrey’s Executor v. United States, a 1935 decision that limited the ability of the president to fire officers from independent agencies, should be overturned or sharply limited.
He also signed an executive order on his first day in office seeking to end birthright citizenship despite the plain text of the 14th Amendment guaranteeing citizenship to “all persons born in the United States and subject to the jurisdiction thereof.” The U.S. solicitor general has requested that the Supreme Court review lower court rulings finding that the order violated the Constitution.
Now, with the court scheduled to hear oral arguments concerning his ability to unilaterally impose tariffs without congressional approval on Nov. 5, the question looms over the proceedings like the sword of Damocles. What if the president decides to ignore the Supreme Court?
Limited options
According to constitutional experts, not much. Part of the problem, says Richard Garnett, the Paul J. Schierl professor of law at the Notre Dame Law School, is that courts have always been reliant on the cooperation of the executive branch to enforce their orders and comply with decisions, regardless of whether or it agrees with them.
He cites Alexander Hamilton’s writings in the Federalist Papers in which he called the judiciary “the weakest of the three departments of power” and that it “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
That being said, there are some mechanisms courts can use. Erwin Chemerinsky, dean of the University of California at Berkeley School of Law (and a contributor to the ABA Journal), says that courts can hold those who violate their orders in contempt—but that approach can be problematic in this instance.
“There is criminal and civil contempt,” he says. “Of course, for criminal contempt, the president can pardon those accused or convicted. For civil contempt, it can be fines or jail until the order is complied with. But it is the United States Marshals, who are part of the Department of Justice, that enforces civil contempt.”
Geoffrey Stone, the Edward H. Levi distinguished service professor of law at the University of Chicago Law School, agrees.
“If the executive branch flat-out refuses to comply with court orders and refuses to prosecute government officials for violating the law, I’m not sure what else the courts could do,” Stone says. “It would be a constitutional crisis of unprecedented proportions.”
Garnett points out there are several remedies besides contempt citations, including sanctioning and disciplining attorneys and issuing writs of mandamus to order officials to perform an act they are required to do. According to the Brennan Center for Justice, writs of mandamus are rarely issued—mainly because they’ve rarely ever been needed.
Ultimately, Garnett says that the best way to deal with an executive who refuses to follow the law is through political means.
“At the end of the day, in our system, the main checks are going to be political; that is, if Congress thinks a president is wrongly not complying with court rulings, they have mechanisms (defunding things, possible impeachment!),” Garnett writes in an email. “Similarly, if We the People think a president is wrongly not complying with court rulings, we can vote him or her (or his or her political allies in Congress) out of office.”
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