Earlier this month, for example, Judge Amir Ali ordered the U.S. Agency for International Development, also known as USAID, to unfreeze its funds for aid groups while litigation continued. Multiple aid groups told the court that no such actions have been taken. The State Department, which has taken control of the formerly independent agency, later said that all grants had been frozen department-wide as part of a temporary review by Secretary of State Marco Rubio.
Judge John McConnell also received intense pushback in recent weeks after he ruled that the Trump administration was defying his temporary order to release federal funds blocked by the White House’s Office of Management and Budget in January. Vice President JD Vance claimed on Twitter that “judges aren’t allowed to control the executive’s legitimate power,” while a White House spokesperson said that any legal challenge to Trump’s executive orders was “nothing more than an attempt to undermine the will of the American people.”
In normal circumstances, courts would have multiple tools to enforce compliance from defiant litigants. Judges can find people in contempt of court for disobeying their orders or interfering with their proceedings, which can result in fines or imprisonment. They can instruct the U.S. Marshals Service to bring in fugitives, to carry out warrants, and to ensure that the federal judiciary’s orders are generally complied with.
The justices, outraged by the sheriff’s defiance and backed by President Theodore Roosevelt, brought Shipp and his associates to Washington, D.C., and tried them for contempt of court. He and a handful of others were sentenced to between two and three months in prison in 1909. To this day, United States v. Shipp remains the only criminal trial ever conducted by the Supreme Court. The justices theoretically retain the power to conduct similar trials in the future.
If the president defies the courts and Congress does not impeach him for it, the Constitution simply ceases to exist. There is no backup president whom a judge could call to enforce subpoenas or warrants if the regular one won’t do it. While the U.S. Marshals Service is best known for carrying out the judiciary’s will, it functionally exists as an agency of the Justice Department, and its Senate-confirmed officials can ultimately be fired by Trump himself. There is no reason to believe it would be immune to his will. Last month, the acting marshal for D.C. reportedly visited multiple judges’ chambers to directly pressure them to speed up the releases of prisoners who were pardoned for January 6-related offenses.
Before Arpaio could be sentenced to up to six months in jail, Trump issued a full pardon to him, citing his history of serving his country. He even previewed the move at a rally where he asked his supporters about the possibility. “So was Sheriff Joe convicted for doing his job?” the president reportedly said. “I’ll make a prediction: I think he’s going to be just fine, OK?” It is not hard to imagine Trump’s “doing his job” logic being applied to his appointees carrying out his orders.
Even so, issuing pardons for contempt of court might seem like an implicit violation of the separation of powers. Unfortunately, the Supreme Court has disagreed. In the 1925 case Ex Parte Grossman, the justices reviewed a pardon issued by President Calvin Coolidge for Chicago saloon owner Phillip Grossman, who had ignored a federal court order to stop selling alcohol during Prohibition.
“To allow such power in the executive is to strike a death blow at the independence of the judiciary,” Judge George Carpenter wrote for the lower court. “The power to punish for contempt is inherent in, and essential to, the very existence of the judiciary. If the President is allowed to substitute his discretion for that of the courts in this vital matter, then truly the President becomes the ultimate source of judicial authority.”
If the President has the power to grant the pardon in this case, what becomes of the sanctity of decrees against confiscatory acts of the agents of government, state and national? What becomes of injunctive orders under the interstate commerce, antitrust and kindred statutes? What becomes of the authority of the courts to protect the citizen in the exercise of the rights guaranteed to him by the Constitution, against irreparable injury to life and property? It was well said that the power to tax is the power to destroy; it is just as true that the power to pardon for contempt is the power to destroy judicial authority.
Taft’s ruling was highly deferential to the executive branch, an approach that is perhaps unsurprising since he had previously led it. He argued against a strict separation of powers, noting that the various branches had tools to check and balance each other and that the pardon power was one of them. Taft also rejected as fanciful the idea that his interpretation could be used maliciously by a future president.
“Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President,” Taft continued. In other words, even more unimaginable to him than a rogue, lawless president was a Congress that would do nothing to constrain him.
Civil contempt differs from criminal contempt in a few key ways. With civil contempt, a judge can issue a fine for each day that a litigant refuses to comply with a court order, or they could order someone to be held in jail until they agree to cooperate with the court. Since these aren’t punitive, as Taft noted, they can’t be wiped away by a pardon. But their coercive power would be limited when the president is involved, as the courts would still depend on other actors to enforce their will.
The Constitution—and the Framers who drafted it—did a decent job at devising a structure for government that would allow the different branches to check one another to preserve liberty. No constitutional text is well written enough to save the rule of law when the American people elect a president who doesn’t believe in the Constitution, especially when he is joined by a Congress that refuses to hold him accountable for violating it.
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