What Would Happen If the President Defies a Court Order?

February 3rd 2017

With lawyers gearing up to challenge President Trump at every turn, and given Trump's temperament and lack of conventionality, it seems possible he may try to defy court orders with which he disagrees.

During the initial battle over Trump's executive order banning refugees and other immigrants over the weekend, reports came out that numerous border agents were defying a federal court order that said to let immigrants detained at multiple airports enter the country. The question becomes: What would happen if Mr. Trump decided to encourage federal employees to defy a court order?

new york courthousewallyg/Wikimedia - wikimedia.org

Some history

"An officer who defies a court order is subject to contempt of court," Michael McConnell, director of the Constitutional Law Center at Stanford Law School, told ATTN:. That means the federal employee could face fines or jail time.

McConnell said presidents have tried to get around court orders in the past, but it hasn't happened in a long time. He pointed to President Abraham Lincoln refusing to comply with the U.S. Supreme Court during the Civil War when it decided the president did not have the authority to order that a man accused of treason, Maryland state legislator and militia lieutenant John Merryman, be held without trial. 

lincolnJeff Kubina/Wikimedia - wikimedia.org

Andrew Jackson did a similar thing when he reportedly said: “John Marshall has made his decision; now let him enforce it.” The accuracy of that quote has been debated, but that's another story. Jackson was referring to Supreme Court Justice John Marshall, who had ruled that a state law allowing for the seizure of indigenous land violated federal treaties. And, indeed, Jackson simply ignored the ruling, as PBS recounts.

A constitutional crisis

Any president defying the courts could cause a constitutional crisis. 

"If the president were to tell [federal employees] to disobey a court order, then presumably the court would hold those officers in contempt," Adam Winkler, a professor of constitutional law at UCLA, told ATTN:.

"They could, possibly, even hold President Trump in contempt," Winkler said. "It's not clear exactly how that would work. It would be a constitutional crisis of the sort that maybe we're likely to get in a Trump administration."

constitutionBluszczokrzew/Wikimedia - wikimedia.org

Winkler said it would definitely "cause chaos," and that "the prospect is too horrible" to even contemplate.

Trump acting in such a way could be the basis for impeachment proceedings, but that would be the responsibility of a Congress controlled by the president's own party, Winkler noted. One major reason the president resisting courts would be so damaging is the effect it would have on the separation of powers. No branch of the government, at least on paper, is to challenge the power and jurisdiction of another.

What's more likely

Winkler said it's more likely that Trump will have the Attorney General order federal employees to defy the courts, but it's not impossible that Trump would decide to do it himself. He's known for tweeting impulsively and signing executive orders before consulting his top people, after all. 

It is possible, though, that Trump would find it hard to go against his lawyers.

donald trumpGage Skidmore/Flickr - flickr.com

"I imagine that if Trump ordered lawyers to ignore court orders, we would see significant resignations, en masse," Winkler said. "You're talking about government prosecutors who believe in the rule of law. These are not political appointees, these are career prosecutors. They're not going to follow that kind of order."

The conscience of a federal lawyer, then, may be the best tool available to stop a president from defying the rule of law.

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