Trump’s plan to avert a constitutional crisis: “Put pressure on the courts to make some concessions”

Donald Trump is fully acting like America’s first elected autocrat and aspiring dictator. In his mind and that of his followers and allies, he is the State. The law is what Trump deems it to be on any given day. The president’s whims, desires, beliefs, moods and plans are to be followed without question. The United States of America is to be The United States of America under Trump.

In the most recent example of Trump’s tyrannical aspirations, he proclaimed that “He who saves his Country does not violate any Law.” In the context of a years-long pattern of similar statements, Trump truly believes that he is some type of American Caesar or Napoleon above the law. Trump’s statement is a direct rejection of the basic norms of democracy, the Constitution and the rule of law in the United States.

In the face of such gross corrupt power and rapidly escalating dictatorial moves and aspirations, America’s democracy and the so-called Resistance continue to be weak and ineffective. The Democrats’ pathetic response is exemplified by House Minority Leader Hakeem Jeffries, who asked reporters during a recent press conference, “What leverage do we have? They control the House, the Senate and the presidency; it’s their government.” Here is a suggestion: Jeffries and the other senior Democrats need to ask themselves, “What would Mitch McConnell do if he were in our position?” They should then do that — times ten. Leaders must meet the demands of the moment and crisis. In total, the Democratic Party is failing to rise to the challenge.

The courts, however, are attempting to stop Donald Trump and his administration’s plainly unconstitutional and likely illegal acts. Judges have issued orders against Trump’s attempt to nullify the 14th Amendment to the Constitution and cut off the federal government’s loans and grants and other spending, which is a power exclusively reserved for Congress. However, the Trump administration is refusing to fully comply with these court orders. If the Trump administration continues to defy the courts, it will, in all probability, force a constitutional crisis. This is likely their plan.

Last year, the right-wing extremist justices on the Supreme Court basically decided that Trump is a king who can do anything he wants as long as he claims that he is acting in an “official capacity” in accordance with his “constitutional authority.” Such a ruling is the ultimate appeal to power for Donald Trump. The courts can tell Trump to stop his executive orders and other diktats and all he has to do is invoke how they are extensions of his “presidential authority” and are thus “legal.”  

What of the American people? What of their outrage and disgust at the Trump administration? Public opinion polls show wide support for President Trump and many of his actions — support that is not limited to Trump’s MAGA diehards. America’s democracy is very ill and getting much worse every day.

In an attempt to make better sense of President Trump and his administration’s use of executive orders and their legality and power, if a constitutional crisis is imminent, and what, if any, role the states have to play in substantively resisting the Trump administration’s shock and awe campaign against the Constitution and rule of law, I recently spoke with Douglas Keith. He is senior counsel at the Brennan Center’s Judiciary program, which works to promote fair, diverse and impartial courts. Keith is also a founding editor of State Court Report, a Brennan Center publication focused on state courts and state constitutional law.

This is the second of a two-part conversation.

Donald Trump has issued dozens of executive orders and other edicts. What power and legal authority do executive orders really have in the American system of law and democracy?

It depends on the executive order. Some executive orders have real teeth and legal effect. The president is the head of the executive branch. As chief executive, the president has the authority to direct any number of agencies in their work and specifically to tell them how to do their work. There are limits to what executive orders can do. For example, executive orders cannot void acts of Congress. There are executive orders that are little more than glorified press releases. The power of a given executive order ultimately depends on what authority the order claims to rest on, with that authority still very much constrained by the Constitution.

Many court cases have been filed against Trump’s executive orders and other edicts. For example, judges have put a pause on his attempts to freeze federal loans, grants and other funding because it violates Congress’ exclusive “power of the purse.” A judge has also put a hold on Trump’s attempts to overturn the 14th Amendment of the Constitution. Trump and his mouthpieces, including Vice President JD Vance, are signaling, if not explicitly stating that they will likely refuse to follow the court orders they disagree with. What enforcement powers do judges have if such a nightmare scenario occurs?

First, it should be clear that obeying a court order is not just a norm, it’s the law. Since the Civil War, presidents have followed court orders. Presidents of both parties have understood and obeyed the bedrock principle that presidents follow court orders even those they disagree with. Trump followed this precedent as well during his first term. For example, when the courts enjoined the travel ban that he issued back in 2017, President Trump complained on Twitter, but he complied with the order. President George W. Bush asserted broad presidential powers in the war on terror, and the Supreme Court said that detainees in Guantanamo Bay could challenge their confinement, he said that he’d abide by the court’s decision, even though he disagreed with it.

Going back further in time, President Truman issued an executive order to seize the country’s steel mills in the middle of a war, the Supreme Court said that was unconstitutional, and he backed down. The last time we’ve really seen any broad refusal by elected officials to follow court orders was after Brown v. Board of Education when Southern governors refused to desegregate schools and President Eisenhower, who didn’t love the Brown v. Board of Education decision by the way, nonetheless sent in federal troops to enforce the decision. When Southern governors refused to desegregate schools during Jim Crow is now widely understood as one of the most shameful periods in our history.

This wide range of examples demonstrates how strong the assumption is that elected officials are supposed to follow court orders, even those they disagree with.

In terms of what happens if a court order is not obeyed, there are a number of tools that judges have access to for enforcement purposes. Judges have contempt power and can issue fines or even arrest individuals who refuse to comply with a court order. Judges do this all the time with people appearing before them. A given judge may be more reluctant to do that when it comes to an executive branch official, but it would not be the first time that a judge held an executive branch official in contempt. These tools have been given to judges in our system of law because there’s an understanding that the parties involved are not always going to follow their orders and judges need tools to enforce their orders.

What of President Jackson’s likely apocryphal rebuttal of the power of the courts, that they don’t have an army to make him follow their rulings? Vice President Vance recently invoked that argument about the courts’ supposed lack of real power and authority over the executive branch.

Judges have the tools I described to enforce their orders. But there are limits to these powers. If you have individuals or a president who does not want to follow the orders or respond to the sanctions that come next, it will then be of paramount importance that any American who cares about maintaining our constitutional democracy remain vigilant and speak out in defense of the rule of law. Defending American democracy is the responsibility of a range of stakeholders across American society, not just the courts. Those stakeholders cannot and should not tolerate any refusal by a president or other member of the executive branch or government more broadly to comply with the constitution.  

Who are these “stakeholders?” Specifics matter here. 

When we’re talking about the “stakeholders” in our legal system and our democracy, that should mean everyone. Everyone in the United States should be invested in our government continuing to function as a democracy. Specifically, some of those stakeholders include judges, lawyers and advocates, both specifically involved in a given case, but also the legal community more broadly. There are businesses that depend on functional courts for the stability of the economy. There are, of course, interest groups and/or individuals who anticipate needing to rely on courts for the protection of their rights. But when the question is, who does the rule of law matter to? The answer is everyone.

What role do the states play in pushing back against President Trump’s executive orders and other edicts?

The states are involved in bringing some of the lawsuits you alluded to. But because these cases involve questions of federal law, and the budget and spending are fundamentally questions of federal law that will play out in federal court rather than state court. There could still be litigation playing out in state court because of actions from the Trump administration, but that will more likely be in response to specific things happening in a particular state. For example, you might see lawsuits in a state where schools or advocates are saying that the schools are inadequately funded without this federal funding being delivered to the state anymore and that the state needs to deliver more funding to make up for the gap created by the federal government’s actions.

There is much public concern about a doomsday scenario where the US Supreme Court decides against Trump’s executive orders and he and his administration refuse to obey that ruling(s). This would constitute a constitutional crisis, perhaps the worst since the Civil War. Your thoughts?

Some of this litigation will end up at the United States Supreme Court. The administration has already said they’re appealing one district court decision to an appeals court, which is the next step before appealing to the U.S. Supreme Court, and that appeal could come pretty quickly. Some of the Trump administration’s current actions clearly appear to be unconstitutional or illegal under current law. But the administration may be anticipating that the US Supreme Court will read the law differently than it has in the past. Recent decisions coming out of the Supreme Court have expanded the executive branch’s power. That being said, I do not believe that there is any outcome in the Supreme Court that is inevitable when it comes to these cases. In the end, the public may be surprised to see some of the decisions coming out of the Supreme Court, even though the court has been so significantly shaped by President Trump during his prior administration.

The Trump administration and its agents know that they are likely not going to get everything they want in terms of their executive orders and other attempts to push, if not break, the boundaries of the rule of law and the Constitution. But the Supreme Court can still issue a ruling(s) that gives the Trump administration some of what they want, thus effectively expanding the boundaries of presidential power and authority.

Yes. As part of its political and legal strategy, the Trump administration may indeed be trying to advance theories and claims it knows will not be fully successful. Their thinking may be that the court will grant some of the additional power that it wants even if it doesn’t give them everything they ask for. It is also worth asking whether some of the threats to not follow court orders are part of the same strategy. The veiled threats against the judiciary and its authority may reflect an effort to put pressure on the courts to make some concessions to the administration to avoid the direct conflict between the branches and the potential constitutional crisis that might come with ruling fully against them.

During this tumultuous time here in the United States, what, if anything, gives you hope?

What gives me the most hope is the number of people I see who are deeply committed to preserving our democracy even in the face of the real dangers to it in America right now.