DENVER – Tucked deep in the thousand-plus pages of the multitrillion-dollar budget bill making its way through the Republican-controlled U.S. House is a paragraph curtailing a court’s greatest tool for forcing the government to obey its rulings: the power to enforce contempt findings.
It’s unclear whether the bill can pass the House in its current form — it failed in a committee vote Friday — whether the U.S. Senate would preserve the contempt provision or whether courts would uphold it. But the fact that GOP lawmakers are including it shows how much those in power in the nation’s capital are thinking about the consequences of defying judges as the battle between the Trump administration and the courts escalates.
Republican President Donald Trump raised the stakes again Friday when he attacked the U.S. Supreme Court for its ruling barring his administration from quickly resuming deportations under an 18th-century wartime law: “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!” Trump posted on his social media network, Truth Social.
Trump vs. the district courts
The most intense skirmishes have come in the lower courts.
One federal judge has found that members of the administration may be liable for contempt after ignoring his order to turn around planes deporting people under the Alien Enemies Act of 1798. Trump’s administration has scoffed at another judge’s ruling that it “facilitate” the return of a man wrongly deported to El Salvador, even though the Supreme Court upheld that decision.
In other cases, the administration has removed immigrants against court orders or had judges find that the administration is not complying with their directives. Dan Bongino, now Trump’s deputy director of the FBI, called on the president to “ignore” a judge’s order in one of Bongino’s final appearances on his talk radio show in February.
“Who’s going to arrest him? The marshals?” Bongino asked, naming the agency that enforces federal judges’ criminal contempt orders. “You guys know who the U.S. Marshals work for? Department of Justice.”
Administration walking ‘close to the line’
The rhetoric obscures the fact that the administration has complied with the vast majority of court rulings against it, many of them related to Trump’s executive orders. Trump has said multiple times he will comply with orders, even as he attacks by name judges who rule against him.
While skirmishes over whether the federal government is complying with court orders are not unusual, it’s the intensity of the Trump administration’s pushback that is, legal experts say.
“It seems to me they are walking as close to the line as they can, and even stepping over it, in an effort to see how much they can get away with,” said Steve Vladeck, a Georgetown law professor. “It’s what you would expect from a very clever and mischievous child.”
Mike Davis, whose Article III Project pushes for pro-Trump judicial appointments, predicted that Trump will prevail over what he sees as hostile judges.
“The more they do this, the more it’s going to anger the American people, and the chief justice is going to follow the politics on this like he always does,” Davis said.
The clash was the subtext of an unusual Supreme Court session Thursday, the day before the ruling that angered the president. His administration was seeking to stop lower courts from issuing nationwide injunctions barring its initiatives. Previous administrations have also chafed against national orders, and multiple Supreme Court justices have expressed concern that they are overused.
Still, at one point, Justice Amy Coney Barrett pressed Solicitor General D. John Sauer over his assertion that the administration would not necessarily obey a ruling from an appeals court.
“Really?” asked Barrett, who was nominated to the court by Trump.
Sauer contended that was standard Department of Justice policy and he assured the nation’s highest court the administration would honor its rulings.
‘He’s NOT coming back’
Some justices have expressed alarm about whether the administration respects the rule of law.
Justices Sonia Sotomayor and Ketanji Brown-Jackson, both nominated by Democratic presidents, have warned about government disobedience of court orders and threats toward judges. Chief Justice John Roberts, nominated by a Republican president, George W. Bush, issued a statement condemning Trump’s push to impeach James E. Boasberg, the federal judge who found probable cause that the administration committed contempt by ignoring his order on deportations.
Even after the Supreme Court upheld a Maryland judge’s ruling directing the administration to “facilitate” the return of Kilmar Abrego Garcia, the White House account on X said in a post: “he’s NOT coming back.”
Legal experts said the Abrego Garcia case may be heading toward contempt.
U.S. District Court Judge Paula Xinis has complained of “bad faith” from the administration as she orders reports on what, if anything, it’s doing to comply with her order. But contempt processes are slow and deliberative, and, when the government’s involved, there’s usually a resolution before penalties kick in.
What is contempt of court?
Courts can hold parties to civil litigation or criminal cases in contempt for disobeying their orders. The penalty can take the form of fines or other civil punishments, or even prosecution and jail time, if pursued criminally.
The provision in the Republican budget bill would prohibit courts from enforcing contempt citations for violations of injunctions or temporary restraining orders — the two main types of rulings used to rein in the Trump administration — unless the plaintiffs have paid a bond. That rarely happens when someone sues the government.
In an extensive review of contempt cases involving the government, Yale law professor Nick Parrillo identified only 67 where someone was ultimately found in contempt. That was out of more than 650 cases where contempt was considered against the government. Appellate courts reliably overturned the penalties.
But the higher courts always left open the possibility that the next contempt penalties could stick.
“The courts, for their part, don’t want to find out how far their authority goes,” said David Noll, a Rutgers law professor, “and the executive doesn’t really want to undermine the legal order because the economy and their ability to just get stuff done depends on the law.”
‘It’s truly uncharted territory’
Legal experts are gaming out whether judges could appoint independent prosecutors or be forced to rely on Trump’s Department of Justice. Then there’s the question of whether U.S. marshals would arrest anyone convicted of the offense.
“If you get to the point of asking the marshals to arrest a contemnor, it’s truly uncharted territory,” Noll said.
There’s a second form of contempt that could not be blocked by the Department of Justice –- civil contempt, leading to fines. This may be a more potent tool for judges because it doesn’t rely on federal prosecution and cannot be expunged with a presidential pardon, said Justin Levitt, a department official in the Obama administration who also advised Democratic President Joe Biden.
“Should the courts want, they have the tools to make individuals who plan on defying the courts miserable,” Levitt said, noting that lawyers representing the administration and those taking specific actions to violate orders would be the most at risk.
There are other deterrents courts have outside of contempt.
Judges can stop treating the Justice Department like a trustworthy agency, making it harder for the government to win cases. There were indications in Friday’s Supreme Court order that the majority didn’t trust the administration’s handling of the deportations. And defying courts is deeply unpopular: A recent Pew Research Center poll found that about 8 in 10 Americans say that if a federal court rules a Trump administration action is illegal, the government has to follow the court’s decision and stop its action.
That’s part of the reason the broader picture might not be as dramatic as the fights over a few of the immigration cases, said Vladeck, the Georgetown professor.
“In the majority of these cases, the courts are successfully restraining the executive branch and the executive branch is abiding by their rulings,” he said.
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