The Federal Judiciary versus the Trump Administration

A federal judge’s failed order halting deportation flights over the weekend has prompted cries that the Trump administration is defying the judiciary. While the facts are still unclear, it appears that the Trump administration allowed two planes of 238 Venezuelan and 23 El Salvadoran gang members to land abroad despite federal district judge James Boasberg’s order that the flights return to the United States. White House press secretary Karoline Leavitt claimed that the administration did not defy a court order but also declared that “a single judge in a single city cannot direct the movements of an aircraft ... full of foreign alien terrorists who were physically expelled from U.S. soil.”

Despite cries of a constitutional crisis and Trumpian monarchism, Presidents do not have a constitutional obligation always to follow all judicial orders. Presidents have some constitutional authority to refuse to obey a judicial ruling. But this awesome power has been used only once in American history. And not during a run-of-the-mill separation of powers conflict, but at the start of the most unprecedented and existential crisis the nation had ever faced: the Civil War. While the facts may still indicate that Trump did not order, or even know of, resistance to Judge Boasberg’s ruling, historical conflicts between presidents and the courts suggest that current circumstances fall far short of such extreme measures.  

Setting aside the merits of the constitutional question, refusing to honor a court order in this case would represent political malpractice. Defying the courts would waste President Trump’s political capital and even deprive himself of an ally in his fight against the administrative state. There may be times when a president must defy a court order. This is not one of those times; it’s not even close.

Nevertheless, White House criticism of the court order prompted conservative attacks on the judge and the judiciary. “Judge Boasberg is endangering Americans! He blocked the deportation of violent Tren de Aragua gang members—rapists, murderers, and thugs. No judge should have the power to override @POTUS’ national security decisions,” said Rep. Brian Babin in a press statement distributed on Monday by the White House. Added Rep. Addison McDowell: “Yesterday, an Obama-appointed judge ruled that two flights carrying rapists and murderers from the Tren de Aragua gang be turned around & brought back to the U.S. This is flat out disgusting and I’m glad @realdonaldtrump is moving full steam ahead.”

Trump’s defenders are deploying rhetoric that echoes earlier attacks on the courts, most recently used by Democrats angry over judicial halts to President Biden’s orders on student loan cancellation or the Covid emergency.  Trump’s opponents respond that Trump is deliberately provoking a constitutional crisis by defying a federal court order. Meanwhile, the Trump administration appears to be appealing its losses in this and other trial courts around the country – the behavior of a President intent on respecting the ultimate decisions of the judiciary when rendered by its highest courts.

The Trump administration should not be surprised that its opponents have turned to the courts to stop its immigration measures. The judiciary is a they, not an it — because the judiciary has so many judges, inevitably, one of them will enjoin Trump’s new immigration measures. While the Constitution requires the creation of a Supreme Court, it grants Congress the power to organize the lower federal courts. Congress has established a decentralized system comprising more than 677 federal trial judges and 179 appellate judges. Challengers of Trump’s executive orders will bring suit in a district court, a system organized into 94 geographic districts, where Presidents Obama and Biden appointed a majority — or ideally all — of the sitting judges. Likewise, a plaintiff will seek to appeal in circuit courts, with the same overweighting of judges appointed by Obama and Biden. Progressive lawyers would be guilty of malpractice if they did otherwise — just as Democrats today are suing in Washington, D.C., San Francisco, and New England, so too did conservatives sue the Biden administration in Texas and the South.

A decentralized judiciary is not the only reason a conflict over constitutional meaning is inevitable. Trump seeks not just to make policy adjustments within the existing political framework but also wants to overthrow that establishment altogether. Trump did not remove the Venezuelan and El Salvadoran gang members through the normal immigration process, during which the illegal aliens would have received due process before immigration judges and, ultimately, federal courts. Instead, the administration put forward a truly unprecedented justification: that the United States is at war with, or has been invaded by overseas drug cartels; therefore, its members can be deported under the 1798 Alien Enemies Act without court hearings. It was inevitable that a federal court would halt deportations before it could consider this claim.

None of this, however, means that Presidents have no authority to resist the courts. The Framers designed the Constitution to encourage the branches to fight for primacy. As James Madison explained in The Federalist, the separation of powers is built on the idea that “ambition must be made to counteract ambition.” Presidents who pursue grand designs will meet with serious resistance from the judiciary, which, after all, generally supports the constitutional status quo and acts as a brake on political passions. Thomas Jefferson’s Revolution of 1800 led to the failed impeachment of a Supreme Court Justice and produced the landmark Marbury v. Madison, in which the Marshall Court declared its power of judicial review. Andrew Jackson’s populism led him to reject the Supreme Court’s McCullough v. Maryland decision and destroy the national bank. Abraham Lincoln rose to national prominence with his assault on Dred Scott and its blessing of slavery. Teddy Roosevelt and Woodrow Wilson launched the first progressive attacks on the Supreme Court for failing to view the Constitution as an organic, living thing that should adapt to modern times. FDR threatened to pack the Supreme Court after it initially ruled that major elements of the first New Deal were unconstitutional.

These Presidents had a point. They can claim a popular mandate that the Court, which the Framers designed to be far removed from partisan politics, cannot. They can also assert — though it is much out of fashion these days — that the Supreme Court does not have a monopoly on interpreting the Constitution. The Constitution is the supreme law of the land, and its higher status means that it prevails over the acts of any branch of government. In Marbury v. Madison, Chief Justice John Marshall declared, “the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void.” Just as with an act of Congress or a state law, therefore, presidential orders or judicial decisions that are “repugnant to the Constitution” must also be “void.” Under the logic of Marbury, Presidents have an obligation not to enforce unconstitutional laws or carry out unconstitutional judicial decisions.

Presidents might even claim a special obligation to “executive review,” as we might call it. Article II of the Constitution gives the President the duty to "take Care that the Laws be faithfully executed.” The Constitution is the highest source of those “laws.” To carry out this responsibility, which the Constitution places solely on the executive, Presidents must have the power to enforce the Constitution first above congressional statutes or judicial decisions. This implies that Presidents must also have the power to interpret the Constitution.  Otherwise, they would not have a measuring stick against which to judge the laws and decisions of the other branches. In this respect, Presidents need not follow Supreme Court opinions. “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” Andrew Jackson explained in his message vetoing the recharter of the Second Bank of the United States. “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” Jackson declared.  And, he emphasized, “on that point the President is independent of both.”

While the Constitution theoretically grants a presidential power to decline to obey a judicial decision, it has only been exercised once. It came at the hands of President Abraham Lincoln, but it was not over Dred Scott and the slavery question. Lincoln followed Jackson in arguing that the reasoning of judicial decisions did not bind him, but conceded that he would enforce the judgment of the court – who won or lost the case. “I do not deny that such decisions may be binding in any case, upon the parties to a suit, as to the object of that suit,” Lincoln explained in his First Inaugural Address. Decisions of the Court should receive “very high respect and consideration in all parallel cases by all other departments of government.” It may even be worth following erroneous decisions at times, as the costs of reversing them can be high. But “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln would put these words into practice when he issued the Emancipation Proclamation freeing the slaves, but only in areas under rebellion or in combat that were governed by his power as Commander-in-Chief,not by the civilian courts.

The circumstances when Lincoln chose to defy a judicial order stand in stark contrast to the brewing conflict over immigration today. On April 27, 1861, Lincoln unilaterally suspended the writ of habeas corpus along the route from Philadelphia to Washington, replacing civilian law enforcement with the military. Suspension prevented rebel spies and operatives detained by the military from petitioning the civilian courts for release. Union officers arrested John Merryman, an officer in a secessionist Maryland militia, for participating in the destruction of the railroads near Baltimore. Chief Justice Roger Taney – the author of Dred Scott – issued a writ of habeas corpus ordering the commander of Union forces in Maryland to produce Merryman in court. The general refused. Taney responded by issuing an opinion, sent to Lincoln himself, holding that only Congress could suspend the writ. If military detention without trial were permitted to continue, Taney wrote in Ex Parte Merryman, “the people of the United States are no longer living under a government of laws.” Taney claimed that the Lincoln administration “has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers.”  

Lincoln refused to execute Taney’s writ and, uncharacteristically, never explained why. On July 4, 1861, he asked a special session of Congress to approve his rush of emergency measures in the early days of the War: calling up an army, paying for it out of the Treasury, sending the military into offensive operations against the South, imposing a blockade. But Congress would not approve the suspension of habeas corpus until 1963. Instead, Lincoln had decided that enemy combatants during wartime had no right to seek their release from the civilian courts, a position he followed until the end of the War.

The current controversies over immigration and deregulation fall short of the historical circumstances of Ex Parte Merryman. Secession was an existential challenge to the United States, and it triggered the most destructive war in American history. Lincoln had to take extreme emergency measures to face a conflict for which the Constitution had not accounted, and the nation had not prepared. Today, the United States has suffered after several years of unstopped illegal migration across the southern border, which has allowed criminal gangs such as Tren de Aragua and MS-13 to spread violence and drug cartels to smuggle fentanyl that kills hundreds of thousands. But these problems, serious as they are, do not pose the imminent destruction of the Union.  The President and Congress have access to the financial and manpower resources, should they wish to spend them, to bring these problems under control using the usual political and law enforcement process (as they are already doing).

Defying the courts would provide only a temporary political boost, whose short-term benefits would give way to long-term harm. Some of the extreme MAGA voices of the Republican Party might welcome an effort to bring the courts to heel. But the courts are not Congress. The Framers gave federal judges their jobs for life to make them impervious to political pressure. Congress has failed to impeach a federal judge because of disagreement with a decision since the first Jefferson administration. Assaults on the judiciary have typically resulted in significant political losses for their proponents. Ask FDR; after Congress rejected his court-packing plan in 1937, he suffered significant losses in the 1938 midterm elections and abandoned further New Deal reforms. Ask Joe Biden; he proposed limiting the terms of Supreme Court Justices, much of his party demanded court-packing, and progressive groups funded a series of ad hominem attacks on the ethics of conservative Justices.

The tragedy of defying a judicial order is that it would challenge a judicial system more welcoming to conservative theories of presidential power than any of the last century. The Supreme Court currently enjoys a six-Justice majority of varying degrees of conservativism; one of the great achievements of Trump’s first term was to appoint three of them, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Without those Trump appointments, Roe v. Wade would still permit nationwide abortion, New York and other states could still ban virtually all gun possession, and Harvard would still be openly choosing students based on skin color. Justices Clarence Thomas and Samuel Alito are conservatives who fought in the trenches of the Reagan administration when Trump was still a pro-choice Democrat. Without Chief Justice Roberts, perhaps the least conservative of the group, Trump would have never won the 2024 case that recognized his immunity from prosecution for his past official acts. These conservatives are making headway in restoring the primacy of the original – not the progressive – Constitution. All the theory and logic underlying Trump’s assault on the administrative state derives from the legal thinking and scholarship of these and other conservative judges and the academics and lawyers who have supported them for nigh on five decades now.  

The Trump administration needs the support of the Supreme Court for its broader agenda to succeed. It is pressing forward on downsizing the federal bureaucracy and reducing government spending without explicit congressional approval. It is trying to unify the executive branch by bringing the wayward independent regulatory agencies under direct presidential control. It seeks to end diversity, equity, and inclusion programs both inside and outside the government. Today’s conservative Supreme Court would provide the most favorable forum in several generations for the Trump administration’s agenda.  However, turning the issue into a challenge to the legitimacy of judicial orders – no matter how mistaken on the merits – could well unify the judiciary against Trump and his deregulatory program.

Perhaps worst of all would be the destabilizing longer-term effects if the Trump administration were to succeed in defying judicial orders. As Alexander Hamilton recognized long ago, the judiciary controls neither “the sword or the purse.” It has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Despite disagreements over the outcomes of decisions, presidents have always enforced the judgments of the courts. President Dwight Eisenhower sent the 101st Airborne to desegregate southern schools even though he personally disagreed with Brown v. Board of Education; President George W. Bush accepted judicial review over Guantanamo Bay even though he believed it to be a military operation, during wartime, outside the jurisdiction of the courts. Enforcement of judicial decisions is one of the foundational elements of the rule of law in the United States, which has fostered stunning economic growth, a vibrant civil society, and limited government. Defy judicial orders and refuse to enforce court decisions, and Trump could cause systemic uncertainty and disruption that could inflict far greater harm on the nation than winning a short-term political victory over a few wayward district judges.

Common sense, the watchword of the new administration, would counsel instead that the White House use the regular levers of power to achieve its ends. It can work through the appeals courts to correct mistaken lower court decisions. Trump’s Justice Department can seek, as it is doing with its appeal of losses on the anti-birthright citizenship executive order, to persuade the Supreme Court to end the power of trial judges to control the entire federal government through universal injunctions. It can also ask Congress to enact simple technical changes to make clear that individual trial judges can only grant relief to the actual plaintiffs who appear in their courtrooms and not every hypothetical party with a grievance against a change in government policy. Far better for Trump to proceed through our constitutional system rather than to make that system his enemy.

John Yoo is a senior research fellow at the Civitas Institute, and a distinguished visiting professor at the School of Civic Leadership at the University of Texas at Austin. He is also the Emanuel Heller Professor of Law at the University of California at Berkeley where he supervises the Public Law and Policy Program, among other programs at Berkeley Law. Concurrently, he is a nonresident senior fellow at the American Enterprise Institute.