Walter Olson
As one who watches the law, there are no questions I get asked more often these days than: What happens if the Trump administration decides to defy a court order? Who will win? The answers aren’t easy, because there are multiple possibilities that fall between clear compliance and clear defiance. That makes it hard to predict where the process will lead, much less whether anyone will “win.”
President Trump, joined by close associates, has put out contradictory messages over the past month. On February 15, he blasted out a supposed Napoleon quote, “He who saves his country does not violate any law”—which, not to put too fine a point on it, are the words of a tyrant who feels bound by no law. Both the White House and Elon Musk ballyhooed and promoted the quote. Yet Trump also took a different and reassuring line with reporters at the White House earlier this month: “I always abide by the courts. Always abide by them, and we’ll appeal.” Which Trump will we get? The one who insults judges but lets the appeals process have the final say or the one who might feel the final say belongs to him as the one saving the country? On this issue, as on others, I suspect the administration has cultivated a sort of studied ambiguity.
Last week New York University law professors Trevor Morrison and Richard Pildes published a short, accessible piece in the New York Times that makes a good starting point in addressing my first question. They begin by asking what resources the courts can draw on should their orders be defied. Those powers, wielded primarily by lower courts, are not trivial, even aside from the formidable power to jail persons for contempt. They include the power to assess fines on officials that can be levied on the officials’ bank accounts and property; even if the government ignores court orders, banks generally don’t. The courts can also—and following 2021’s bogus claims of election fraud, did—set in motion sanctions or disbarment against lawyers practicing before them.
That being said, the typical scenario in compliance fights is one of escalating sanctions over time, rather than some sort of declaration of inter-branch war. The escalations are likely to work in the manner of negotiations, with courts unlikely to invoke the strongest measures without a lengthy back-and-forth ramp-up involving a series of failures. In the meantime, litigants avoiding the specter of contempt charges can invoke what are often very real factual and legal uncertainties about whether they’re genuinely capable of complying with an order, and what substantial compliance is. Reviewing these questions may require resorting to higher courts, which can also review claims that a court order was overbroad.
Which brings us to the current situation. Of the dozens of court challenges to early Trump administration actions, many have matured into court orders restraining the administration. According to JustSecurity’s table of pending cases, as of this morning, courts have issued preliminary injunctions (PIs) in cases involving Department of Government Efficiency (DOGE) access to Treasury systems, the federal funds freeze, transgender prisoner assignments, refugee policy, immigration enforcement at places of worship, and (five of them!) Trump’s edict on birthright citizenship. They’ve also issued numerous temporary restraining orders (TROs) on a wide variety of topics, while declining many other requests for both PIs and TROs. (TROs typically expire quickly and are hard to appeal.)
In two areas of litigation in particular so far—challenges to freezing of funds and to the dismantling of USAID, the Agency for International Development—judges have sympathized with plaintiffs’ complaints that the Trump administration has dragged its heels about complying with TROs. In the spending-freeze challenge heard in Rhode Island federal court, Judge John McConnell granted a motion to enforce an earlier TRO, suggesting that defendants had broken it willfully. In two related USAID challenges, the D.C. federal district court issued various follow-up orders but “did not make a finding of contempt, citing ‘Defendants’ explicit recognition that ‘prompt compliance with the order’ is required.’” And in a third USAID challenge being heard in Washington, DC, a skeptical federal judge declined to extend a deadline set in a February 13 order to release funds, after Department of Justice lawyers averred that freeing up the funds would take further “weeks,” which the judge may have viewed as a sort of DOGE-ate-my-homework excuse. The Supreme Court itself last night paused the order, Chief Justice John Roberts asking the parties to submit filings by Friday on what should happen next.
So long as resistance to compliance is plausibly deniable, confined to lower courts, or both, it can simmer along for a long period in a kind of twilight conflict. If a Supreme Court order were being defied, and the defiance was open, much would change. It is often pointed out that the US Marshals Service, which enforces court orders, is housed in the Department of Justice and thus subject to presidential direction. But the Marshals Service has a specific mission of assisting the judiciary, and corrupting that mission might not be so easily accomplished. It’s also often pointed out that a presidential pardon can nullify one of the courts’ most notable sets of powers, the levying of sanctions for criminal contempt. But the pardon power (and immunity) does not extend to various other sanctions wielded by the courts, such as the levying of civil fines.
Would a determined executive ever fall back in the end on the core power asymmetry between the two branches—it has guns, and the judges don’t? Morrison and Pildes point out that the consequences could quickly undermine some of the national strength that a president might be counting on for other purposes. “The US economy enjoys a ‘safe harbor premium,’ ” they write. “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 US business community and attracts immense foreign investment in the economy.” If the wheels come off constitutionally, the United States might stop being the world’s preferred investment destination, with economic consequences that are unknowable but probably very bad. It’s hard to imagine even a Napoleon wanting to embark on that winter campaign.