Donald Trump’s administration and its allies are responding to a slew of court rulings blocking the White House’s actions with the same sentiment: We will see.
“This is going to be interesting to see if we believe in the Constitution or not,” Rep. Keith Self, House Freedom Caucus stalwart from Texas, told NOTUS. “Is the president the head of the executive branch, or is the judicial branch in charge of the executive branch?”
House Speaker Mike Johnson openly called for the judicial branch to take a step back. Elected officials, from Self to Vice President JD Vance, have argued that courts are ruled by activist judges intent on stopping the Trump revolution.
It’s become increasingly clear that MAGA is rearing for a fight on presidential powers — a constitutional question that legal observers see going all the way to the Supreme Court. In the interim, the country has been thrust into a state of legal uncertainty as the Trump administration continues to push policies that the courts are blocking at every turn.
On Monday, a federal judge in Rhode Island upbraided the administration for not following a restraining order he handed down on Jan. 29 blocking the administration’s funding freeze. The judge noted that legal precedence is clear: Court orders must be followed, even if they are later overturned on appeal, and failing to do so is the kind of thing that results in a contempt of court order.
The immediate question: What happens if the Trump administration doesn’t listen?
“Well, then we’re in completely uncharted waters. Then they’re acting in an explicitly lawless and unconstitutional manner,” Sen. Adam Schiff, the California Democrat who led investigations of Trump while a House member in the first administration, told NOTUS when asked about the White House defying court orders. “There is no simple recourse to that.”
Sen. Josh Hawley told Business Insider Tuesday that “you can’t” openly defy a court. But push the court orders to its limits — that’s still up for debate.
There’s little power of accountability in the lower courts when it comes to holding the president in contempt, said Michael Gerhardt, professor of law at the UNC-Chapel Hill whose expertise on presidential powers has been called on in two presidential impeachments — Bill Clinton’s and one of Trump’s.
A contempt order with real teeth is hard to fathom, he said. “This is because they are enforceable by U.S. marshals, who are part of the executive branch and therefore under the control of the president,” Gerhardt told NOTUS. “Trump will either threaten to fire or dismiss any agents who fail to follow his order not to serve the contempt citations (or bother to enforce them).”
Outside observers say there will eventually have to be a showdown over Trump’s view that his power extends far beyond its traditional boundaries. It may not be this week, they say. But it will happen, and it will happen at the Supreme Court.
Before then, lower courts like the one in Rhode Island will likely have to grin and bear it as the administration pushes back on their legitimacy.
“It’s not practical … and not necessarily likely to be that successful as a means of coercion,” Daniel Faber, a law professor at Berkeley, said of a contempt order. “I think to some extent, holding them in contempt is just a way of basically banging the table and saying, ‘Goddamn it! I meant it when I issued that order in this case.’”
In some ways, Faber, who published a book in 2021 exploring the legal guardrails tested by Trump in his first administration, sees Trump pushing for rulings.
“Trump has moved more aggressively than I expected and more aggressively than he did in his first term,” Faber said. “He is pushing, I think, at least for judicial determinations about whether he has the ability to impound funds, which is sort of key to a lot of what [Elon] Musk is doing right now.”
Privately, Democrats engaged in lawsuits against the administration are already counting the votes over some of the key issues that will eventually land before the high court. They feel reasonably good about impoundment, for example, but they’re not sure how a Supreme Court heavy with Trump appointees will rule on a lot of other stuff.
Ultimately, courts are complicated, and they are slow. A contempt ruling can always be appealed; an appeals court can always avoid ruling on the larger issue at hand by kicking a case back down to the lower courts. The question “Are we having a constitutional crisis?” remains open through all of it, scholars said.
Meanwhile, Democrats are relying on their Republican colleagues to break with the president.
Sen. Richard Blumenthal said he hoped Americans would “tell their Republican senators that they won’t take it anymore; there are limits to what the president can do by way of lawless action.”
“We’re trying to elevate the lawlessness of this administration at every opportunity,” Blumenthal said. “We’re trying to make people more aware, and we’re breaking through the flurry and deluge of illegal actions.”
State Democratic attorneys general across the country, who have successfully brought several of the cases blocking Trump’s orders, have repeatedly said it’s way too early to declare the courts powerless against Trump.
“Our democratic institutions are strong, they’re resilient. They’re durable. They are intact,” California Attorney General Rob Bonta told NOTUS on Jan. 28, after the courts temporarily blocked Trump’s order on birthright citizenship.
Of course, that’s not to say there isn’t any crisis. Trump’s orders have already had a real impact on the federal government, creating what Bonta called a “layer of impact beyond the official conduct” that lawsuits can’t do anything about.
Ultimately, Faber thinks the Supreme Court will rule against Trump on some big stuff Trump wants. But then comes the heavier question.
“There are ways they can kind of dodge the confrontation, at least for a bit, but they can’t do that on everything. I think they’re going to have to decide birthright citizenship, for example. And I think Trump’s going to lose,” Faber said. “If Trump were to say, ‘No, I’m going to go ahead and deport people anyway,’ then yes, we’re in a clear constitutional crisis. A really big one.”
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Evan McMorris-Santoro and Riley Rogerson are reporters at NOTUS. Mark Alfred is a NOTUS reporter and an Allbritton Journalism Institute fellow.