By now, we all know that Donald Trump and his friends have been breaking the law. The Impoundment Control Act, the Privacy Act, and the Constitution itself have probably all been violated by the executive branch since the inauguration.
If one were disposed to agree with the president’s agenda, it wouldn’t be a far leap to think that Trump is justified in breaking the law because they are preventing him from implementing desirable policies. This leap is particularly narrow if you believe that Trump’s policies are literally “saving” America.
It is surely morally permissible to steal a loaf of bread to genuinely prevent oneself from starving. But is it permissible to violate your oath to protect the Constitution and destroy our fragile system of checks and balances in order to stop DEI, take life saving care away from emaciated children in poor countries, and assault our nation’s ability to lead the world in scientific research? Does this sound like “saving” America, or does it sound more like lighting your house on fire to kill a spider?
The thought of presidents defying court orders used to be far-fetched – not unheard of but rare. Abraham Lincoln famously refused a Supreme Court order by Chief Justice Robert Taney, when he suspended the writ of habeas corpus during the Civil War. Andrew Jackson refused to enforce an order by the Supreme Court that a prisoner in Georgia be released.
What these examples tell us about the judicial check on executive power is that the executive branch is in charge of enforcing court orders on itself. If the Trump administration continues to defy orders, the next steps that the courts might be forced to take are financial and criminal sanctions, including possible jail time for members of the administration.
This, on its own, does not come close to guaranteeing compliance. As has been noted by many, compliance depends on the president respecting the rule of law and understanding that undermining the judicial branch’s check on executive power would compromise our entire system of governance – this doesn’t appear to describe president Trump so far.
If the rule of law is undermined, then the responsibility for ensuring that the executive doesn’t make a catastrophic mistake falls on the shoulders of individuals like those who would be charged to carry out those mistakes – regular staffers and perhaps members of the military. It goes without saying that regular people refusing orders should not be the sole reason a president doesn’t exercise despotic rule.
While I would love to believe that Americans in positions to refuse outrageous orders would ultimately know when some presidential directive has gone too far, that would be ignoring the fact that our cells and molecules are arranged in much the same way as all of the other foot soldiers in history who sometimes did things like tossing babies off roofs.
Perhaps one reason to be hopeful that this is inaccurate was what happened when Donald Trump attempted to overturn the results of the 2020 election. Individuals like Mike Pence rose up and refused to allow Trump to do as he pleased.
The situation now is not as robust though, given that Trump has staffed much of the government with zealots and cowards, who are much less likely to resist. He also has all of the Republicans in Congress too terrified to consider impeaching him – on the contrary, they are currently attempting to impeach federal judges who have ruled against Trump’s executive orders.
With all of this centralization of power and the president’s seeming defiance of court orders, it sure looks like Trump is challenging the rest of government to try to stop him.
The Trump administration asked the Supreme Court on Wednesday evening to halt a federal judge’s ruling to release USAID funds – Justice Roberts complied. This is one sign that perhaps Trump won’t go as far as outright ignoring the judicial branch’s orders. On the other hand, Trump working within the bounds of the system may only survive insofar as it doesn’t prove too much of an obstacle.
If the courts do prevent Trump from implementing too much of his agenda, we might find out what happens when a US president attempts to exercise total control. When it happened to the Russians, they found out that their society folds more neatly than a napkin at a Michelin starred restaurant. I’m sure we won’t fold like that though, we won the Miracle on Ice for a reason.
Rafael Perez is a columnist for the Southern California News Group. He is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.