With President Donald Trump’s administration appearing to act in open defiance of court orders, even as the Justice Department insists the administration is trying to comply in good faith, and Vice President JD Vance railing against the authority of the judiciary, legal experts note that courts could still impose dramatic civil penalties on those who carry out Trump's orders, a measure courts are yet to impose.
At the same time, historians note that the Trump administration, in asserting broad executive powers unchecked by Congress or the courts, is reviving legal battles that were considered settled hundreds of years ago.
On Monday, Judge John McConnell Jr., presiding over a federal court in Rhode Island, wrote that the Trump administration was violating the “plain language” of a previous court order prohibiting “all categorical pauses or freezes” in federal spending.
The freeze has affected a wide range of programs, like early childhood education programs funded by Head Start grants, tribal governments, schools in low-income districts and rural hospitals. A senior official at the Federal Emergency Management Agency also directed subordinates to freeze a vast assortment of grants on Monday, even after the ruling in Rhode Island.
Meanwhile, over the weekend Vance suggested that the administration might spurn the judicial system, claiming in a social media post that judges "aren't allowed to control the executive's legitimate power.”
“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.”
Trump himself told reporters Tuesday that "I always abide by the courts" despite protests from his allies, like billionaire Elon Musk, who earlier said that McConnell, the Rhode Island judge, ought to be impeached.
Michael McConnell, a former judge on the Tenth Circuit Court of Appeals and the director of Stanford’s Constitutional Law Center, expressed skepticism that the Trump administration would openly defy a court order, despite some of its rhetoric. He spoke with Salon on Monday, before the Rhode Island court clarified that the administration was not in compliance with their previous order.
McConnell noted that the General Accountability Office and the Comptroller General, which are technically part of the legislative branch, are theoretically responsible for ensuring the president is in compliance with appropriations statutes. But, “in the end, we rely on the courts, which is why it would be such an extreme step if the president just didn’t follow a court opinion.”
David Super, a legal historian at Georgetown University, told Salon that in terms of “the issue of overt defiance, it really hasn't happened squarely. ”
Super explained that even infamous examples often brought up when discussing the issue aren’t as clear cut as what Trump is doing right now. For instance, in the instance of Worcester v. Georgia, which concerned whether the state of Georgia had the authority to regulate the affairs of its citizens and the Cherokee Nation, President Andrew Jackson is often said to have defied the Supreme Court. Vance himself cited an apocryphal quote attributed to Jackson while appearing on a podcast in 2021, saying that "when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.'"
Politico recently asked Vance if he still believed Trump should simply ignore the judicial branch. He replied: "Yup."
However, Super notes, the United States wasn’t a party to the case, “so there was never any order directed at Jackson or another federal authority. That’s an example of a president expressing disdain for a president but not refusing to comply with it.”
Another oft-cited case of a president defying a court is in the case of United States ex rel. Murphy v. Porter, which concerned President Abraham Lincoln's suspension of habeas corpus. Lincoln had intervened in an attempt to serve a writ of habeas corpus. While the circuit court that ruled on the issue protested this intervention, they never actually ordered Lincoln to do something else.
“That was not an opinion of the Supreme Court," Super said, noting that "back then Supreme Court justices sat on other courts when the Supreme Court wasn't in session.”
“Lincoln," he continued, "was clearly unsympathetic but never defied even that order, let alone an order of the Supreme Court. It never ordered President Lincoln to do anything else.”
In terms of mechanisms of accountability, Super said that there are some measures the courts can take that they haven't yet, with the main one being holding administration officials in civil contempt.
“If they jail people for criminal contempt, Trump can pardon them and they can get out. But courts can also charge people with civil contempt, which is not a penalty — it's a coercion,” Super said. “The Supreme Court has held that the pardon power does not apply to civil contempt.”
Essentially, courts have broad discretion to proscribe coercion in order to make people, including executive officials, comply with a court order; this can take the form of fines or jail time for the person who refuses to comply. While judges have traditionally given employees of the executive branch more leeway in their timeline for compliance, Super said that “the court is capable of imposing a fine capable of coercing anyone’s compliance,” even a billionaire.
“Go broke or go to jail,” Super said. “They could do that to Mr. Musk or Mr. Vought.”
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Holly Brewer, a legal historian at the University of Maryland, told Salon that “what Trump is doing is moving back to a role for the legislature where the legislature is merely advisory.”
Brewer said that, in this way, Trump is revisiting battles that were settled in the 17th century during the English Civil War and the Glorious Revolution.
“The thing that strikes me the most is that if funds are appropriated by Congress and approved to be used for particular purposes, this is the law of the land — and if the president is somehow deciding by executive order that he gets to change these fund,s this is an issue that was at the core of the constitutional crises of the 17th century,” Brewer said.
In Brewer’s assessment, the Supreme Court unleashed Trump with its presidential immunity ruling in 2024, which effectively isolates him from suffering consequences for potentially illegal acts, at least if they can be construed as official acts of the president.
“It isn’t an accident that we’re here now. It’s because of some of what the Supreme Court has done,” Brewer said. “I don’t think even the Supreme Court fully understood the consequences of the immunity decisions.”
Lawrence Rosenthal, chair of the Center for Right-Wing Studies at the University of California, agreed with Brewer in identifying the immunity decision as key legal groundwork for the current moment.
“I think the larger question is immunity or impunity: the sense that the executive can do what he wishes without fear of running afoul of the law. Another way of putting that is 'being above the law,'” Rosenthal said.
Rosenthal noted that under both German and Italian Fascism, ruling parties passed acts aimed at insulating themselves from accountability. In Germany, this was called the Enabling Act; in Italy, it was the Acerbo Law.
Rosenthal noted that both the German and Italian systems were parliamentary democracies, however, and that in the United States, it was the Supreme Court that granted this type of protection. “The name of it was 'presidential immunity,' which was discovered last year by the Supreme Court."
“Donald Trump has been given a kind of legal carte blanche, so if there are sanctions or orders and he does not follow them he is, in the words of the immunity decision, acting in his capacity as president, and he does not have criminal liability,” Rosenthal said.
The only silver lining of the current legal battle, in Rosenthal's view, is that “Americans have had the most serious conversation in my lifetime about the nature of fascism.”
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