There are rumblings that President Trump is considering disobeying various of the court orders that have been issued against his administration. Perhaps these rumblings are distorted or exaggerated. But I figured that I would sketch some thoughts on the topic.
1. I’ll emphasize at the outset that I do not think it defiant, or even remarkable, for the federal government to decline to comply with an order while it seeks emergency relief from that order. [Addendum: To be clear, a party may be held in contempt of court for even temporary non-compliance with an order, and I don’t mean to suggest otherwise. When I say that I would not regard conduct as defiant, I mean that I think it compatible with broader rule-of-law norms.]
For an extreme example, take Justice William O. Douglas’s single-justice order on August 3, 1973 that would have barred U.S. military operations in or over Cambodia. The Solicitor General filed an application to overturn that order on August 4, and the Supreme Court granted the application that same day. Would anyone seriously contend that President Nixon was obligated to cease military operations in or over Cambodia from the time he learned of Douglas’s order until the time the Court overturned it?
In much more mundane contexts, it will often be the case that a district court will deny the government’s request for a stay of its preliminary injunction. When the government fails to comply with the injunction during the very short period that it seeks an emergency stay from a higher court, I would not characterize that course of action as defiant.
Ditto with respect to temporary restraining orders, especially when they have been imposed in a hearing without the government’s lawyers even being invited to be present. The government is entitled to some time to figure out what relief it might seek.
2. I do not hold an absolutist position against a president’s sustained refusal to comply with a court order. My position is instead that rule-of-law considerations in our constitutional system generally call for a very strong presumption in favor of executive-branch compliance with federal court orders. Truly extraordinary circumstances might well overcome that presumption.
3. In his first inaugural address, Abraham Lincoln drew a sharp and important distinction between the Supreme Court’s rulings in particular cases and the holdings or reasoning that underlie those rulings.
Rulings “must be binding in any case upon the parties to a suit as to the object of that suit”—including, the context makes clear, when the federal government is the losing party. Why? Lincoln’s concise answer:
[W]hile it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
“[A] different practice,” I understand Lincoln to mean, would be a practice in which the federal government has free rein to decide which judgments it will abide by. The “evils” of that “different practice” would be the collapse of anything that could reasonably be referred to as the Rule of Law.
But, Lincoln explained, while the Court’s holding on a constitutional question is “also entitled to very high respect and consideration in all parallel cases by all other departments of the Government,” its holding does not bind the president and Congress in those other cases:
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions 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’s remarks were of course directed at the Court’s infamous Dred Scott decision. Lincoln’s actions as president were faithful to his words. Rejecting the dual holdings of Dred Scott, Lincoln signed into law bills banning slavery in the District of Columbia and in other federal territories, and he instructed the executive branch to issue passports and patents to free blacks (thus recognizing them as citizens).
4. Consistent with the line that Lincoln drew, no president has ever refused to obey a Supreme Court ruling. Indeed, it may well be that no president or presidential administration has ever defied an order of any federal court.
Ironically, the one prominent possible counterexample that legal academics debate is Lincoln’s, or the Lincoln’s administration’s, response to the solo ruling by Chief Justice Roger Taney in Ex parte Merryman (1861). (It’s disputed whether Taney was riding circuit or exercising the authority of a single justice in chambers, but he certainly wasn’t issuing a ruling on behalf of the Court.) As law professor Seth Barrett Tillman sums it up, the Union Army arrested and detained John Merryman, whom they believed to be an “officer of a pro-secession militia group which allegedly had conspired to destroy (and did destroy) bridges and railway lines” at the outset of the Civil War. The conventional account (which I have repeated at least once) is that Lincoln refused to obey Taney’s order to release Merryman from military custody. But Tillman argues at length that Taney never ordered anyone to release the prisoner, that Taney only ordered the general to bring the prisoner to court, and that the available evidence does not establish that Lincoln ever authorized the general to ignore or defy Taney’s order. Law professor Will Baude adds that Taney may have lacked jurisdiction to issue his order.
I am not going to undertake to resolve the debate on these and other points. Suffice it to say that even if the conventional account is right, it would establish only that Lincoln in wartime defied an order—by the author of the Dred Scott opinion, no less—to release someone believed to be actively engaged in treason and sabotage. I will happily accept that such extraordinary circumstances would justify such defiance.