Alexander Hamilton described the judiciary as “the least dangerous branch” of the federal government because it holds neither “the purse” nor “the sword.” Rather, the federal courts have “merely judgment.” In fact, the judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
But what happens to our constitutional order if the executive loses in court and then refuses to give efficacy to the judgment? What happens when presidents defy court orders?
This is no mere academic query. Over the past week, President Donald Trump has inched ever closer to openly defying an order of the U.S. Supreme Court.
On April 10, the Supreme Court ruled that a federal district court order “properly require[d]” the Trump administration “to facilitate” the “release from custody in El Salvador” of Kilmar Armando Abrego Garcia, a man whom the Trump administration admits that it unlawfully deported to a Salvadoran prison because of an “administrative error.” The Supreme Court further ordered the administration “to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” and to “be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
To put it mildly, the Trump administration has not faithfully followed this judicial order. Rather, Trump officials have egregiously misrepresented what the order actually said while taking zero steps to facilitate Abrego Garcia’s return to the U.S.
And things may soon get worse. So let’s assume the worst. Assume that the Trump administration just flat out disobeys a direct Supreme Court order. What then?
There are certain punitive measures available to the Court in such circumstances, such as sanctioning individual members of the administration over their specific complicity. The Court may also impose new injunctions aimed at specific individuals, departments, or agencies to stop them from participating in the lawlessness.
But at some point it all comes back to Hamilton. The judicial branch “may truly be said to have neither FORCE nor WILL,” he wrote, “but merely judgment.”
Think about it like this. In Brown v. Board of Education of Topeka, Kansas (1954), the Supreme Court declared racial segregation in public education to be “inherently unequal” and therefore unconstitutional under the Equal Protection Clause. It is among the most famous decisions in American legal history.
Brown is justly revered today. Yet it was highly controversial in certain quarters at the time. There were cries of “judicial tyranny” in response to the decision, as well as calls for the impeachment of Chief Justice Earl Warren.
And some elected officials took their objections past the point of legality by openly defying the Court’s decision. Perhaps the most well-known example of that is provided by Alabama Gov. George Wallace, who used the power of the state to, in his words, “resist any illegal court order, even to the point of standing at the schoolhouse door in person, if necessary.” As the chief executive of a state, Wallace had numerous government forces at his disposal, and he unleashed them in a concerted effort to violate Brown and keep segregation in place.
Brown was a landmark opinion, but it was not enough, by itself, to stop a figure like Wallace from doing great damage for a time. The Court’s unanimous decision had “merely judgment,” as Hamilton would say, while Wallace had “the sword” of executive power. But the Court’s judgment also had its own kind of power, the kind of power that persuades and convinces, the kind of power that compels people to take political action so that a mere judgment has its efficacy in the end. Today, Brown stands as the law of the land. And Wallace, to the extent he is remembered at all, is remembered as a disgrace.
So, like Wallace, Trump may spurn court orders and find success for a time. But at the same time, there is a price to be paid.
“The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions.” Those words appeared yesterday in a remarkable decision by Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit. It is a decision that every American ought to read, for it spells out exactly what is happening in the Abrego Garcia case, and exactly why the Trump administration deserves to lose it.
“The Government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” Wilkinson observed. “Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.” Such actions “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Like all presidents, Trump is entitled to whine when he loses in court. But the American people will not, I think, look kindly on a loser who tried to wreck the constitutional order in a vain attempt to undo his well-deserved legal defeat.
