Can Trump Defy the Supreme Court?
The theoretical power to do so runs far ahead of presidential practice.
The Trump administration’s tsunami of legally questionable executive orders and related actions are being countered by a growing number of lawsuits and federal court injunctions. Administration officials, and adjacent actors like Elon Musk, have criticized the judicial rulings, sometimes harshly. President Trump on Tuesday said that he “always abide[s] by the courts” and “will appeal,” but he has also said in light of the rulings that “maybe we have to look at the judges,” because “it’s a very serious violation."
These statements have led many commentators to worry—as they worried eight years ago, in February 2017—that the Trump administration is planning to in some sense defy the federal courts.
An array of theories known as “departmentalism” support a presidential power to ignore the constitutional interpretations of federal courts or, more controversially, to ignore the actual judgments of such courts. These theories have a long pedigree in American history. But the theories for such a power would not make a decision by Trump to exercise it right and would not serve the Trump administration’s interests.
Departmentalism in Theory
The Trump administration has thus far been mainly on the losing end of the preliminary rulings issued by lower courts. Trump’s lawyers will have many appeals, some of which will surely reach the Supreme Court. If the administration loses in the Court and if Trump disagrees with the ruling, he has departmentalist arguments for a power to defy the Court.
The basic theory of departmentalism is that while the Supreme Court has the authority to exercise its Article III “judicial Power” in cases or controversies before it, the President’s Article II duty to “take care that the law be faithfully executed” gives him an independent power to determine what “the law,” including the Constitution, means, for purposes of exercising executive power.
Under the dominant strand of departmentalism, a president must respect and enforce a Supreme Court judgment in a particular case but need not follow the Court’s underlying constitutional interpretation in other contexts. Some departmentalists go further and say that a president need not even comply with a Supreme Court judgment with which the president disagrees.
Presidents Thomas Jefferson, James Madison, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt all embraced a version of departmentalism. In the modern era, the theory in various guises has been advocated by government officials ranging from Ronald Reagan Attorney General Edwin Meese to Representative Alexandria Ocasio-Cortez, and by scholars on the left and the right.
Departmentalism in Practice
Departmentalism has long been accepted in practice in some forms. Many administrations have acted at odds with controlling Supreme Court precedent in an effort to convince the Court to change its mind. Roosevelt’s early New Deal program, for example, was based on a broad reading of congressional power that exceeded extant judicial doctrine but that eventually won out.
And executive branch agency defiance of lower court judicial decisions is more commonplace than is appreciated. An exhaustive study in 2018 concluded that “the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively.” Federal agencies almost always ultimately comply due to judicial threats of contempt. But the negotiation process that leads to full compliance is often lengthy and often involves revision of the court order in response to initial non-compliance.
Countering departmentalism is the Supreme Court’s view that “the federal judiciary is supreme in the exposition of the law of the Constitution” and that its constitutional interpretations are binding on political officials. This principle of “judicial supremacy” is subject to the just-noted (and additional) practical caveats. And a departmentalist would maintain that the Court’s view on judicial supremacy is itself just another constitutional interpretation that is not binding on the president.
But despite departmentalism’s long pedigree, it is a remarkable feature of our constitutional practice that no president has ever defied a Supreme Court judgment. Just as remarkably, presidents have, with scattered exceptions in extreme contexts—mainly, Lincoln’s actions in defiance of the principles of Dred Scott during the Civil War—respected Supreme Court precedent even as they sought to convince the Court to adopt a different view.
The bottom line is a messy reality that is often typical of foundational constitutional principles. The Court in the modern era has established itself as the supreme expositor of constitutional law that presidents ultimately respect. The Court has gained this stature in part due to the wisdom of its constitutional judgments in the aggregate over time and the legal system’s need for a definitive settlement of contested constitutional issues.
But there is a great deal of wiggle room within judicial supremacy in recognition that sovereignty in the United States ultimately lies with the American people, and that the Supreme Court consists of nine unelected Justices who are sometimes wrong about, or change their mind on, constitutional issues.
The Trump Administration
Imagine that the Supreme Court invalidates one or several of the Trump administration’s legally aggressive executive orders or actions. If Trump outright defies a Supreme Court judgment he would be acting without precedent. If he defies the Court’s underlying constitutional interpretations, he would be acting contrary to over a century and a half of constitutional practice.
Thus far, the administration is operating in the play in the joints of judicial supremacy and not, yet, defying the courts. One court ruled that the administration had misinterpreted its order and was in partial noncompliance, while another court modified its order in the face of administration pushback. Such skirmishes are typical in lower courts.
The Justice Department also informed Congress, as federal law requires, that it believes that tenure protections for members of independent federal agencies, such as the National Labor Relations Board and the Consumer Finance Protection Board, are unconstitutional. (This legal theory undergirds the president’s recent removals of members of these agencies.) The Department noted that to the extent an old Supreme Court precedent stood in the way of this view, it “intends to urge the Supreme Court to overrule that decision.”
In short, the Justice Department’s approach on the ground thus far signals respect for, not defiance of, federal court authority.
This is prudent. Courts have many ways—including reputation-harming sanctions against the professionals arguing on behalf of the president—to push back against executive branch noncompliance. A direct constitutional confrontation with the Supreme Court might adversely affect markets and would negatively impact the administration’s broader political agenda. The current Court is more inclined than any in American history to uphold the administration’s expansive view of executive power—and Trump will likely have a chance in the next four years to further shape the Court in his image.
While the administration has operated prudently thus far in court, it has acted less prudently vis-a-vis courts in its anti-judicial rhetoric and in the unusual heavy-handedness and chaos that have characterized its actions. When the Supreme Court addresses the administration’s novel constitutional claims it will surely have in mind the administration’s credibility, trustworthiness, and steadiness as a steward of the enormous powers wielded by the great Office. This will make it harder, probably much harder, for the Court to ratify the administration’s constitutional vision.
Puzzles
Why would an administration that seeks to achieve a new constitutional understanding jeopardize the support of a Court that is in many respects disposed toward its constitutional views? This to me is one of the great puzzles of the early second Trump administration.
Perhaps the administration thinks its rhetoric and actions won’t matter to the Court.
Perhaps it believes the Court will ultimately reach a middle ground, and that asking for the whole nine yards of executive power will, despite the tactics and rhetoric, result in a very satisfying four or five in the end. Or maybe something even closer to nine.
Maybe the administration’s rhetoric and tactics are an effort to intimidate the Court into accepting its broad claims.
Maybe the officials behind the executive branch actions have not thought about the implications in the Supreme Court possibly years down the road.
Maybe they do not care, on the theory that the disruption and political wins now are worth court losses later—especially since they can blame the Court if they are unable to deliver on agenda items.
Maybe there is no coherent plan.
Or maybe the administration plans to defy the Court in the end in any event.
At this point there is no way to tell which combination of factors might be in play. The only thing that seems certain now is that the success of the Trump scheme to rethink constitutional constraints will depend in part on the Supreme Court that the administration is surely alienating.