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.
