At a time when the Trump administration is violating the Constitution and federal laws in countless actions, it also is engaged in a concerted effort to undermine the only real check on its power: the federal judiciary. Weakening the courts is a page in the playbook of every leader who wants authoritarian powers.
One effort to do this is the Trump administration’s request to the Supreme Court to prevent federal courts from issuing nationwide injunctions against unconstitutional and illegal presidential actions. On Thursday, May 15, the Supreme Court heard oral arguments as to whether federal courts have the authority to issue nationwide injunctions against the Trump executive order that would largely end birthright citizenship.
If the Trump position prevails, it would mean that a challenge to an unconstitutional federal policy would have to be brought separately in all 94 federal districts. If the government repeatedly lost, as it has with regard to the challenges to the birthright citizenship executive order, it could continue the unconstitutional policy everywhere else until some court ruled in its favor and the losing party took the matter to the Supreme Court.
Actually the position of Solicitor General D. John Sauer, representing the Trump administration, was even more extreme. Sauer argued that a federal court may only grant relief to the named plaintiffs in a lawsuit and cannot extend that remedy to anyone else. For example, if Mary Smith, after giving birth, successfully challenged the birthright citizenship executive order as to her baby, that would benefit no one other than her child. All other parents would need to separately litigate.
Nothing in the Constitution or federal law imposes such a constraint on the power of federal courts. It is a stunning effort by the Trump administration to limit the ability of judges to check its unconstitutional actions.
A bill that has passed the House of Representatives would go even further in restricting the ability of federal courts to enforce their orders. A provision in the spending bill would limit the authority of federal courts to hold government officials in contempt when they violate court orders. Without the contempt power, judicial orders are meaningless and can be ignored.
The provision in the proposed budget reconciliation bill states: “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.”
By its very terms this provision is meant to limit the power of federal courts to use their contempt power to enforce judicial orders. It does so by relying on a relatively rarely used provision of the Rules that govern civil cases in federal court. Rule 65(c) says that judges may issue a preliminary injunction or a temporary restraining order “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
But federal courts understandably rarely require that a bond be posted by those who are restraining unconstitutional federal, state, or local government actions. Those seeking such court orders generally do not have the resources to post a bond and insisting on it would effectively immunize unconstitutional government conduct from judicial review. It has always been understood that courts can choose to set the bond at zero.
The effect of this provision would be to make countless existing injunctions and preliminary injunctions – including against the Trump administration – unenforceable because no bond was required. Courts would lose the power to enforce long-standing injunctions that are in place to desegregate schools, reform police departments, and enforce antitrust laws. Much of the injunctive relief issued so far against the Trump administration – such as to prevent it from sending additional individuals to a maximum-security prison in El Salvador – would become similarly unenforceable. For future injunctive relief, courts could get around the law by requiring a $1 bond. But a great many existing court orders will become null.
All of this reflects an unprecedented disdain for and attack on the courts by a president. When United States District Court Judge James Boasberg issued a temporary restraining order preventing additional flights to take individuals to a maximum-security prison in El Salvador, President Trump said on social media that the judge is a “radical left lunatic of a judge, a troublemaker and agitator” who should be impeached.
In fact, House Republicans have introduced impeachment resolutions against six federal district court judges who have ruled against Trump policies. The Constitution allows impeachment only for “treason, bribery, or high crimes and misdemeanors.” In an extraordinary public statement, Supreme Court Chief Justice John Roberts declared, “[I]mpeachment is not an appropriate response to disagreement concerning a judicial decision.”
Republicans know, of course, that their impeachment efforts will fail. Even if the House passed impeachment resolutions, there is no way that two-thirds of the Senate would vote to remove the judges from office. But that misses the point. The impeachment push is about sending a message – to judges that the Trump administration will target those who block his policies, and to the public that the courts cannot stop him.
The crucial question going forward will be whether President Trump and his administration choose to defy court orders. So far there are conflicting signals. President Trump has said that he will comply with Supreme Court rulings, but he also has declared, “[H]e who saves the country violates no law.” The Trump administration has complied with the Supreme Court order not to send additional prisoners to El Salvador, but it has circumvented this by sending individuals to South Sudan. It has not complied with a federal court order to facilitate and effectuate the return of Kilmar Abrego Garcia from El Salvador. And it appears that many court orders to restore federal funds have not been followed.
Throughout American history, presidents have complied with court orders even when they vehemently disagreed with the rulings. But what if President Trump, who has shown little fidelity to good faith compliance with the law, openly defies court orders? Our constitutional system will be challenged as never before. Courts have the contempt power. The President, though, can pardon anyone convicted of criminal contempt, and it is the United States marshals, who are under the control of the Attorney General, who enforce civil contempt.
If the President can violate the law and then ignore court orders, no longer will we be a nation under the rule of law. The President then can do literally anything. That is why so very much depends on the courts’ ability to stop unconstitutional presidential actions.
