Throughout everything that happened during Donald Trump’s first term in office—the abuses of executive power, the impeachments, the attack on the U.S. Capitol on January 6, 2021—the administration never outright defied an order of the court. Now, less than a month into Trump’s second term, the president and those around him seem to be talking themselves into crossing that line.
The crisis began—where else?—on X, where the administration’s unelected chancellor Elon Musk began spitefully posting about a court order limiting the ability of his aides to rampage through sensitive payment systems at the Treasury Department. Within the locked, echoing room of the X algorithm, Musk’s outrage bounced among far-right influencers and sympathetic members of the legal academy until it found the ear of Vice President J. D. Vance, who posted on Sunday: “Judges aren’t allowed to control the executive’s legitimate power.”
Vance’s post is somewhat tricky. The vice president didn’t say outright that the administration would defy a court order, but he hinted at it by implicitly raising the question of just who determines what constitutes a legitimate use of executive authority. Is it the executive branch itself, or the courts? Since the Supreme Court handed down Marbury vs. Madison in 1803, the answer has emphatically been the latter. But if the Trump administration decides that the president himself—or Elon Musk—gets to choose whether or not to obey the courts, then the country may cross into dangerous and unknown territory. Legal scholars can’t agree on just what defines a constitutional crisis, but pretty much everyone would recognize intentional executive defiance of a court order as one.
The good news, such as it is, is that the administration doesn’t yet seem to have taken the plunge. The bad news is that this seems like a live possibility, and nobody really knows what will happen if it does. To some extent, there is a road map—but beyond that, not so much.
Already, the cascade of litigation against Trump’s executive actions has resulted in several instances in which courts have scolded the administration for noncompliance. Most notably, almost two weeks after Judge John McConnell ordered the administration to halt its broad freeze of trillions of dollars in federal funds, 22 Democratic attorneys general filed a motion to enforce compliance with the order, alerting the court that funding for many state programs remained halted. The Justice Department responded that it had abided by its own, narrower reading of the temporary restraining order. Judge McConnell swiftly issued another order declaring the federal government to have violated the terms of his initial ruling, demanding that it comply with the more expansive reading of his order going forward—and hinting at the possibility of legal penalties if the administration defied him.
I will admit to watching these proceedings unfold with a pit in my stomach, waiting for Musk, Vance, and Trump to spin themselves up into outright disobedience. So far, though, that hasn’t happened. Instead, the Justice Department appealed Judge McConnell’s order to the U.S. Court of Appeals for the First Circuit—which, despite some procedural oddities, is the normal rule-of-law process for when the government doesn’t like a court order and wants to change it. (The First Circuit denied the appeal.) An ongoing scuffle over whether a certain stream of FEMA funding could be turned off under Judge McConnell’s order has not so far resulted in J. D. Vance tweeting “Come and take it!” Rather, the Justice Department filed requests for clarification from the court about the scope of the order, which the judge provided. Likewise, rather than just disobeying the temporary restraining order that bothered Musk so greatly concerning access to Treasury systems, the Justice Department requested and received a limited carve-out from the court.
None of this is good, but it’s not outright defiance. As the legal journalist Chris Geidner has written, “DOJ lawyers do appear to be seeking a way to advance Trump’s claims in courts while trying to then implement courts’ orders if and when those claims fail.” It’s important that these cases are being litigated by Justice Department attorneys who don’t want to get in trouble with the courts or legal bar authorities for lying or disobeying an order, and have strong incentives to play by the rules. Elon Musk may not care, but lawyers need to worry about their ability to practice law—under future administrations as well.
But what happens if the Trump team decides to push things further? Take the funding-freeze case again—if the standoff continued, the judge might convene a hearing, or plaintiffs could push for one, to determine why the court shouldn’t hold the government in contempt. What then?
Federal courts have broad powers to hold those who defy their orders in contempt. This can take the form of financial penalties or even incarceration, either to strong-arm the contemner into compliance or to punish them for noncompliance after the fact. Those financial penalties can be steep. In one extreme 2014 case, the Foreign Intelligence Surveillance Court hinted at its willingness to impose fines of $250,000 on Yahoo for noncompliance with a government surveillance program—an amount that would have doubled every week, quickly bankrupting the company. (Yahoo complied.)
Yet a broad survey of litigation by Nicholas R. Parrillo, a law professor at Yale, reveals that federal courts have in many cases been reluctant to turn the screws when the federal government itself is the party that might be held in contempt. Instead, Parrillo writes, courts have tended to wield the threat of contempt—relying on the norm that executive officials generally don’t want to be found in violation of a court order. But that norm is exactly what Trump and those around him are now toying with trying to erode.
If a court did try to levy sanctions against a defiant official or agency, that would also bring up the question of who would enforce them. The agency responsible for judicial enforcement is the U.S. Marshals, which is under the control of the Justice Department. By statute, marshals are required to carry out court orders. But while we’re spinning out hypotheticals, what would happen if Attorney General Pam Bondi, or Trump himself, ordered them not to comply?
The answer to that question lies outside the courtroom. It is located instead in the halls of Congress, the pages of newspapers, the boardrooms of businesses and civil-society organizations, and finally the streets. It’s not a struggle that can be resolved by law itself, but rather by whether Americans care enough to demonstrate as a polity that the rule of law matters to them and that they will defend it.
The post What Will Happen If the Trump Administration Defies a Court Order? appeared first on The Atlantic.
