The Last Guardrail

The federal judiciary may be all that can hold back the worst of Trump 2.0. But will it be enough?

Image courtesy of Democracy Docket

There’s a lot of talk of the “guardrails” failing these days. We see it in the cowardice and capitulation of our legacy media, which is shamelessly self-censoring and even settling bogus defamation cases with Trump to appease him and gain favor.

Big corporations have kissed the Orange One’s ass too, with many of the richest CEOs seated by him at his inauguration, resulting in an abject public display of subjugation.

And it’s quite distressingly apparent, at least to anyone paying attention, that the GOP majority in Congress is no check at all upon Trump’s power. Indeed, they continue to fall over themselves to confirm his nominees and win his favor, with many terrified to oppose him and the MAGA mob.

That leaves as our last and best defense the federal judiciary. These are lifetime appointees who still wield considerable power to slow, alter or even halt some of the worst excesses of the new administration. And over the last two weeks, they have proven themselves ready to exercise that power and demand compliance.

In the wake of a slew of executive orders and a brazen takeover of government computer systems by DOGE, plaintiffs—including labor unions, nonprofits and blue state attorneys general—sued. And sued. And sued. The number of lawsuits is fast approaching 50.

The plaintiffs demanded an immediate halt to illegal and unconstitutional acts by the White House, the new cabinet and DOGE members within several key departments and agencies. And the judges listened. Contrary to MAGA claims of “liberal activist judges” inserting themselves into these disputes, the jurists hearing these cases were appointed by both Republican and Democratic presidents, including by Trump himself.

Not long after the cases were filed, these same judges began issuing restraining orders and temporary injunctions ordering the Trump administration to lift freezes on federal payments, to stop firing civil employees, and to limit DOGE’s access to critical systems, among other things. In response, MAGA began threatening open defiance of their orders.

This puts us very near to a constitutional Rubicon. And it raises some important questions. For example, what power does the federal judiciary have to actually enforce its orders? Is the Trump White House preparing to openly defy the orders anyway? And what happens if it does?

Before we get to these, let’s review what some of the loudest voices in MAGA world have said lately about defying the federal courts. Then we’ll do a quick refresher on basic civics so we’re all on the same page about what the law actually says. After that, we’ll try to tackle at least some of the harder questions I listed above.

Defying gravitas

Elon Musk really hates judges. In fact, like our current toddler of a president, Musk hates anything and anyone who tells him that he can’t do what he wants to do. Musk feels zero accountability to anyone, and he believes he can act with impunity at all times.

To underscore this, Musk retweeted a post by a MAGA account that walked through a recent judicial ruling against the Treasury, all while making numerous inaccurate statements. It concluded with these chilling words: “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us.”

Musk wasn’t the highest level “official” in the Trump White House to take this position. Vice President JD Vance went a step farther, tweeting, “Judges aren’t allowed to control the executive’s legitimate power.”

That’s funny, because I remember MAGA cheering wildly when the Supreme Court blocked President Biden from canceling student loans. The justices had ruled it was not something within the “executive’s legitimate power.”

So will everybody just get to defy judicial rulings whenever they don’t agree with the results? That’s not tenable and Vance knows it. He even went to law school at Yale.

Other GOP mouthpieces picked up on Vance’s defiant position and amplified it. Here’s Alina Habba, who is a “counselor to President Trump,” arguing that there’s a “separation of powers for a reason” and that the “executive branch is the ultimate authority on federal issues.”

And here’s Rep. Chip Roy (R-TX) saying that Trump should “take a page out of Andrew Jackson’s playbook” and that JD Vance is “right” when he says “you can’t have a judge step in when the president is exercising his constitutional authority.”

Roy is likely referring to Vance’s earlier support of a what is probably an apocryphal statement by President Andrew Jackson. In 2021, Vance said on a podcast,

“When the courts — because you will get taken to court — and 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.’”

That alleged quote refers to Jackson’s public disagreement with a big Supreme Court’s decision. Worcester v. Georgia, authored by Chief Justice John Marshall, held that individual states, such as Georgia, have no authority over affairs with Indian Nations, such as the Cherokee.

Jackson was never actually called upon as president to enforce any decisions against Georgia. But his critics at the time, including John Quincy Adams, nevertheless condemned him for allegedly refusing to uphold Cherokee claims against the state of Georgia.

This culminated in federally authorized ethnic cleansing on a massive scale, namely the forcible removal of the Cherokee from their homeland. Sen. Josh Hawley (R-MO), rather surprisingly, recently made this exact point in opposing Vance’s call for open judicial defiance. Hawley argued, “Oh, we’re just going to completely ignore the decision? That I think you can’t do. Andrew Jackson did that, infamously. He was wrong on that. That was the Trail of Tears. That was lawless. That was wrong.”

Sen. Hawley’s statement is shocking—in a good way—to hear from a GOP senator. It was especially surprising coming from someone whose public statements are normally on all fours with Vance. But it speaks to the hope that there may be a line that the GOP and even Trump may not wish to cross, even for selfish reasons: the open defiance of a federal judiciary that, on some level, they still need to maintain their own legitimacy.

Marbury v. Madison and the power of judicial review

So what fundamental principle of American governance do Musk, Vance, Habba and Roy all get so wrong?

Basic civics teaches there are three co-equal branches of government. At the risk of oversimplifying, the legislative branch legislates, the executive branch faithfully executes laws, and the judicial branch adjudicates when either of the other branches exceeds its authority.

This is what we all learn in third grade, but at the founding of our Republic it wasn’t clear. It took yet another famous court opinion by Chief Justice John Marshall to set the boundaries. And it has defined the field on which our three branches have played since 1803.

That year, the Supreme Court issued its opinion in Marbury v. Madison. This was essentially a dispute between the two rival political factions under John Adams and Thomas Jefferson. I won’t delve into the details of that case, but what matters is the final holding. The Supreme Court ruled that, under our system, U.S. courts have the power of judicial review. This means they can invalidate laws that they find to be unconstitutional.

Marbury v. Madison also held that this power covers unconstitutional actions by the executive branch, including the president and his cabinet. And that is the question that may take us close to the constitutional abyss in the very near future.

So the courts have issued orders. Can they enforce them?

As Democracy Docket’s Marc Elias explained recently, courts can order many kinds of relief, the most immediate being a temporary restraining order (TRO). Think of a fire burning near the house. A court can order the fire be put out right away (that’s the TRO) so that it doesn’t cause “irreparable harm” before it gets to the question of whose fault the fire was. A party has to obey an order to put out the fire, even if the judge later determines that it wasn’t in the wrong.

Judge John McConnell, the Chief Judge for the district of Rhode Island, made this point clearly in a follow up order to his initial TRO. This second order issued after a group of blue state attorneys general brought to his attention that the Trump administration was not complying with his emergency order to unfreeze federal funds and get the assistance and grants flowing again. Judge McConnell wrote,

[It is a] basic proposition that all orders and judgments of courts must be complied with promptly . * * * Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.

He was quoting a Supreme Court case in fact—Maness v. Meyers , 419 U.S. 449—which plainly laid out this principle 50 years ago in 1975. The fact that Judge McConnell is already talking about criminal contempt is a big warning shot across the bow of the Justice Department.

You generally do not want to mess with a federal judge. Perhaps the president can’t be prosecuted or held in criminal contempt while he is in office, but that’s not true of his cabinet members or any of their subordinates. Justice Department lawyers can also be hauled up on sanctions over their misrepresentations and their dissembling. And as Elias noted, courts can even hire private companies if necessary to help enforce contempt orders and proceedings. Rare, but possible in this environment.

And you probably really don’t want to piss off many federal judges by openly defying all their orders. It is growing increasingly harder for the Trump White House to make the case that a “rogue judge” is standing in the way of its mandate when order after order comes out against it. The higher this stack of orders, the higher the obstacle to overcome. That’s why each and every court win matters.

Perhaps that’s also why, despite rumblings about open judicial defiance, the Trump Justice Department has apparently elected to go the “official route” of appealing orders it doesn’t like, rather than simply thumbing its nose at them. Recently, it sought to appeal McConnell’s emergency ruling to the First Circuit, which on Tuesday shot down its request for a stay pending appeal. As Reuters reported,

U.S. President Donald Trump on Tuesday lost the latest round in a court battle over his administration's bid to freeze federal spending after an appeals court declined to pause a court order requiring the government to continue delivering funds.

The U.S. Department of Justice had asked the Boston-based 1st U.S. Circuit Court of Appeals to put on hold an order a Rhode Island federal judge issued on Monday, after finding the administration had defied his January 31 ruling by continuing to withhold billions of dollars in federal funding.

That means a federal circuit court has now weighed in and agreed that the defendants must comply or risk contempt proceedings before Judge McConnell.

Sure, the Trump White House can appeal again to the Supreme Court. But it may not want to take this particular case up given its current posture. Judges have a great deal of latitude issuing emergency stays—as I analogized, putting out fires nearby the house—to prevent irreparable harm. And McConnell was pretty clearly within his rights to do so.

Moreover, many of the actions that have now gotten the White House into hot water were undertaken by overzealous underlings who, in their eagerness to prove themselves to Trump, ran roughshod over the law. They violated well-established rules and laws governing privacy, civil service employee rights, and access to classified information.

If you’re going to openly defy the courts and then take the matter up to SCOTUS to see if you can get five votes saying you can do this, you probably don’t want a record of complete disregard for both congressional statutes and the express orders of the federal judiciary.

Further, as I’ve argued before, cabinet officials who owe their jobs to Trump may not be so keen to be held in contempt simply to protect Elon Musk’s behavior or that of a bunch of 20-something engineers.

Even Trump seems to have little appetite for going the route of open defiance, at least for now, saying he “always abides by the courts, and then I’ll have to appeal it.”

There is another way for the Trump administration to get its way while not openly defying the courts. That’s playing out now, where a court issues a clear order but the Trump administration doesn’t fully comply, then makes up excuses for why it didn’t, while attacking yet another government department. That “cat and mouse” game is the subject of my piece tomorrow in The Big Picture, so look for that in your inbox, and if you aren’t subscribed you can do so here.

So far, I am somewhat guardedly optimistic, at least for now, that Trump won’t openly refuse to obey federal court orders and try to knock the third leg of our American governance stool out. That day may yet come, of course, given how fundamentally lawless Trump is. We should prepare by finding more GOP officials who see that as a bridge too far, even while Democrats make clear that they will not cooperate on, say, the budget and the debt limit so long as there is any freeze on congressionally authorized funds anywhere.

I’ll be watching whether the Trump White House begins to appeal other rulings, particularly as plaintiffs in other cases bring multiple instances of noncompliance to the attention of federal judges. In the meantime, we should welcome any evidence that we are all still playing on the same field set by Chief Justice Marshall in Marbury v. Madison. On the other hand, we should lock arms in the streets should Trump move out of bounds, declare he isn’t bound by the courts, and seek to destroy the last guardrail.