Maybe the Constitution is a Suicide Pact After All

Over the weekend, Elon Musk--who knows nothing about the law--and Vice President Vance--who certainly knows better--suggested that the Trump administration need not comply with judicial orders limiting its ability to withhold congressional appropriations (and other judicial orders) on the ground that courts lack power to interfere with "legitimate" executive action. That's a question-begging truism, however. The litigation resulting in the orders to which Musk and Vance object aims to determine whether the underlying executive actions are legitimate. In context, Musk and Vance were clearly suggesting that the administration would simply defy duly entered judicial orders. And there is good evidence that the administration is already disobeying some court orders.

To be sure, it is possible that, as Professor Ilya Somin suggested yesterday, the non-compliance we have seen so far results from "incompetence or disorganization." But I agree with Somin that the signs of outright defiance are "ominous."

What happens if Trump fully defies the court orders? Are there tools the courts can use to rein him in? Courts do indeed have tools, but they are unlikely to be effective against a truly defiant president.

If a party disobeys a judicial order, a judge will typically ask that party to show cause (i.e., explain satisfactorily) why the party should not be held in contempt. If placed in contempt, the recalcitrant party may face escalating fines or jail time unless and until the party complies. Needless to say, governments cannot be placed in jail. Government officials can be, but, as Professor Nicholas Parrillo explained in a 2018 article, courts are reluctant to fine or jail government officials, more frequently relying on the shaming effect of contempt.

The Trump administration, however, is shameless. And so eventually, contempt plus sanctions may be needed. Would they be effective?

Let's begin by distinguishing two kinds of contempt. Civil contempt is used to bring about compliance. A party can also be subject to criminal contempt as a punishment. Because it invokes the criminal law, robust procedural protections apply. I won't say much about criminal contempt, however, because I don't regard the prospect of criminal contempt as a substantial deterrent to defiance of court orders by the Trump administration. That's because the Supreme Court held a century ago in Ex Parte Grossman that the president can pardon a criminal contempt. Given Trump's prolific use of the pardon power, he would likely undercut any judicial effort to use criminal contempt.

Pardons can't excuse civil contempt, but here courts face a different problem. A federal government official willing to defy a substantive judicial order would likely also be willing to defy an order to pay a fine or an order to go to jail. There's a special irony with respect to fines: some of the disregard of judicial orders we have so far witnessed involves refusal to pay money required by law to be paid. So defying a fine would be on brand.

To actually make a party held in contempt pay a fine or go to jail, a court must have access to some force. That force comes from the U.S. Marshals Service. However, it is housed within the Justice Department. So Trump, via AG Pam Bondi, could simply direct the Marshals (on pain of firing or being made to take a fork in the road), not to enforce contempt orders against Trump administration officials. Such a direction itself would be illegal, but then it's illegal orders all the way down.

Is there a way out? Not via the judiciary alone. Alexander Hamilton was not wrong when he wrote in Federalist 78 that the judiciary "has no influence over either the sword or the purse." As we have just seen, the president controls the sword, and this president would likely wield it to protect his minions from accountability. Congress controls the purse, but Congress under the leadership of Republicans in thrall to Trump has no apparent interest in using it nor any of its other powers to halt Trump's assault on the rule of law.

One of those other powers Congress could use but surely won't is impeachment. Andrew Johnson was impeached and fell one vote shy of being removed for his violation of the Tenure in Office Act--a statute that Johnson credibly argued was unconstitutional. What Trump is doing is at least as serious and would warrant impeaching him yet again, but here too, Republican control of Congress means it won't happen.

Is it a flaw in our Constitution that a president can defy the courts if aided by the obsequious courtiers of his own party in Congress? In a sense, yes. James Madison, writing in Federalist 51, explained the theory of separation of powers thus: "Ambition must be made to counteract ambition." Each branch of the government, he expected, would jealously guard its powers and use them to check the others. But the framers neither wanted nor expected there to be political parties. Once they arose and rendered the first post-George-Washington presidential elections party affairs, the framers' theory of separation of powers came under strain. Republican members of the House are more loyal to the Republican party than to the House of Representatives. Likewise for Senators.

Even so, since the end of the Civil War, the system held because of two factors. First, for much of the last century and a half, the major political parties had overlap. Until near the end of the 20th century, there were still Dixiecrats in Congress to the right of liberal-leaning Republicans from the Northeast and upper Midwest. Because the parties lacked strong ideological coherence, party loyalty would sometimes give way to institutional concerns. Thus, Republican congressional leaders told President Nixon when it was time to go. That didn't happen to Trump, whose conduct was worse than Nixon's.

Second, most presidents are not psychopaths. Whatever their individual flaws, of the post-realignment presidents, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden were not going to sabotage the country. Donald Trump is different. Hamilton described him perfectly in Federalist 1, when he wrote that "of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants." Perhaps it was inevitable that once the institutional checks dissolved, such a figure would eventually emerge.

Can anything be done? Madison laid down one path in Federalist 46. He imagined that an aroused People could rise up via armed state militias to fight a federal government turned tyrannical. That approach is extremely perilous and likely fruitless. The people most likely to oppose the emerging Trump dictatorship are those least likely to possess deadly weapons.

If there is a path back to sanity, then, it probably must travel through a change of heart by the people who support Trump's assault on democracy. They will not likely be won over by appeals to the rule of law, especially when elite-educated lawyers like J.D. Vance and Tom Cotton are muddying the waters in their social media feeds by telling them that judges are the real threat to democracy. But maybe if Trump's tariffs spark a costly trade war that drives up inflation or RFK Jr.'s insanity unleashes a bird flu pandemic by gutting support for health care and vaccines, there will be enough misery that Trump's support will diminish sufficiently to the point at which elected officials in his own party no longer fear him and can thus rein him in. That said, it is more than a little unsettling to have to depend on an economic or public health catastrophe as the means of averting a political catastrophe.

In the end, there may be no solution. Democracies can die. The Roman Senate had real power for nearly five centuries before Augustus became Rome's first Emperor and began the process of reducing the influence of democratic institutions. The U.S. republic hasn't lasted nearly that long, but we've had a pretty good run.