CNN
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Recent court orders slowing down or indefinitely blocking President Donald Trump’s policy blitz have raised the specter that the executive branch might openly flout the federal judiciary and prompted questions about how judges would respond.
Any decision by the administration to defy federal courts would immediately implicate profound constitutional questions about separation of powers that have kept each branch of the government in check for centuries. That’s in large part because it would test the power of courts to enforce rulings that are supposed to be the final word.
The issue reached a fever pitch on over the weekend when the Trump administration deported hundreds of alleged gang members to El Salvador despite a federal judge’s order that the 19th Century Alien Enemies Act could not be used.
Asked on Sunday night whether his administration had violated the judge’s order, Trump replied: “You’d have to speak to the lawyers about that.”
Legal experts say there are few options to force compliance with its pronouncements. Judges could hold an agency or official in civil or criminal contempt – but that’s about it.
Fears that the Trump administration might deliberately break into a pattern of not following judicial rulings with which it disagrees were amplified last month when a federal judge in Rhode Island, for the second time, told the Trump administration it can’t cut off grant and loan payments after Democratic-led states complained that the administration wasn’t obeying the judge’s previous court order.
A day earlier, Vice President JD Vance also created a storm of criticism when he questioned in a post on X whether courts can block any of Trump’s agenda. “Judges aren’t allowed to control the executive’s legitimate power,” he wrote in part.
The most likely response by a court if the administration were to defy its edict would be to hold the agency acting in defiance of an order or ruling in civil contempt, which would allow a judge to levy fines on the government for its non-compliance, experts told CNN.
“So you fine whoever the relevant defendant is, whether it’s secretary of the Treasury or some other official, and the fines escalate (as the non-compliance continues),” said Michael Dorf, a constitutional law professor at Cornell Law School.
But the issue with that, Dorf added, is that the agency or official might also ignore the imposed fines.
“If they’ve been willing to defy the order in the first place, they might be willing to defy the sanctions order,” he said.
For the moment, the Justice Department has taken the usual approach of appealing to a higher court on preliminary injunctions that have blocked various executive actions. The Alien Enemies Act has already been appealed to the DC US Circuit Court of Appeals.
Asked at the White House last month whether he’ll comply with court rulings, Trump said that he will.
“Well, I always abide by the courts, and then I’ll have to appeal it – but then what he’s done is he’s slowed down the momentum, and it gives crooked people more time to cover up the books,” Trump said. “So yeah, the answer is I always abide by the courts, always abide by them. And we’ll appeal, but appeals take a long time.”
Other formal sanctions by a court, though grounded in a deep history, also come with a host of potential problems when applied to the executive branch. Should a judge decide to pursue criminal contempt, for instance, it would need to be initiated by the Justice Department – meaning it’s highly unlikely given the president’s control over that department. The US Marshals Service, which enforces federal court orders, is also part of the Department of Justice.
“Judges are very leery of using that – and maybe appropriately so – because it’s such a hammer. The threat of sending somebody to jail is sort of a last resort,” said Carl Tobias, a constitutional law professor at the University of Richmond School of Law.
Elie Honig responds to JD Vance’s controversial post about Trump and the courts
Judges holding government entities or officials in contempt is not unheard of. In 2021, US District Judge Royce Lamberth in Washington, DC, held the city’s jail in civil contempt but did not impose any sanctions. The judge, an appointee of former President Ronald Reagan, instead referred the jail to the Justice Department for potential civil rights violations after it failed to get treatment for a US Capitol rioter who needed surgery.
And presidents not complying with court orders, while novel, is also not unprecedented. Then-President Richard Nixon famously defied a court order to turn over White House tape recordings during the Watergate investigation. He ultimately did, but only after the Supreme Court ruled that he needed to hand them in.
David Cole, a Georgetown Law professor who has repeatedly argued cases before the Supreme Court on behalf of the American Civil Liberties Union, predicted that the most likely penalty a president would face for defying a court order would be political – not legal.
“The response,” Cole predicted, “would be to punish the Republican Party.”
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But Cole noted that during Trump’s first term, the White House frequently lost major legal disputes, complained loudly about the judge who issued them and then did what every previous administration has done after losing: appeal.
Despite “a lot of norm-breaking,” Cole said he believed people are overreading Vance’s post on X and other past statements.
“If the president were to defy an order, it would cause a political firestorm,” Cole said. “And he knows that, and he’s therefore very unlikely to do it.”
Dorf said that the difference between how the Trump administration responded to adverse court rulings during the first term and now is “the complete acquiescence of congressional Republicans to Trump.”
That support, he said, forecloses the possibility that Congress might use its impeachment power to punish Trump or others for potential non-compliance with a court order.
Some Republicans have defended the role of the federal judiciary or pushed back on the idea that the White House might defy rulings hamstringing Trump’s agenda.
Among them is Louisiana Sen. John Kennedy, a Republican on the Senate Judiciary Committee, who said last month that he supports the “legitimacy of the federal judiciary” and the judicial process.
“I’ve disagreed with opinions before,” he said. “That’s why God made courts of appeal. That’s why God made the US Supreme Court.”
CNN’s Katelyn Polantz contributed to this report.
This story was originally published on February 12. It has been updated following the ruling on the Alien Enemies Act and deportations to El Salvador on March 15.
