What Happens When The Trump Administration Disobeys The Courts

President Donald Trump has been on a collision course with the federal judiciary since he took office in January.

In the president’s attempt to reshape the government to his liking, Trump’s administration has pursued extreme measures that seemingly contradict existing law: They have impounded federal funds despite being prohibited by both the Constitution and existing law, fired officials against congressional statute, and fired government workers in contravention of civil service laws. In each case, they have come close to violating or been in violation of court orders, although briefly and often with a veneer of plausible deniability.

But the administration may have finally collided with the judiciary in its effort, despite a judge’s orders, to remove and detain a group of Venezuelan immigrants that it claims are gang members and terrorists. The conflict between two coequal branches of government is yet another front in Trump’s war on the country’s existing legal and constitutional structures, and raises the question of whether — and how — the judicial branch could win such a confrontation.

This potential crisis emerged after the administration seemingly disobeyed the March 15 order of District of Columbia District Court Judge James Boasberg to halt or return flights rendering the Venezuelan immigrants to a prison in El Salvador. Despite Boasberg’s explicit order, none of the flights were stopped or returned to the United States, despite the fact none had arrived in El Salvador at the time his order was given and one flight had not even taken off from Texas.

Administration lawyers made numerous claims to argue either that they did not violate Boasberg’s order or that his orders have no power to control the executive branch’s actions here. They claim that Boasberg’s verbal bench order was insufficient; his order had no controlling authority on planes outside U.S. airspace; the detainees had already arrived in El Salvador by the time he released a written order; and the flight that was still in the air contained detainees subject to a different presidential power than the one at issue in the court case. At the same time, Department of Justice lawyers state the court can’t even review the president’s actions because he has inherent authority over immigration and deportations.

Despite these legal arguments, public statements of top administration officials reveal them to be laughing in Boasberg’s face. Secretary of State Marco Rubio retweeted a post by El Salvador President Nayib Bukele responding to Boasberg’s order that read: “Oopsie … Too late,” followed by a crying-laughing emoji. Billionaire Elon Musk, a “special government employee” of the White House, responded to Bukele’s tweet with his own crying-laughing emoji.

Some have been even more explicit. “We are not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming,” White House border czar Tom Homan said Monday on Fox News.

Boasberg responded with a public court hearing Monday during which Justice Department lawyers refused to answer basic questions about the flights or the authority under which the removals were carried out. In a telling moment, the judge uttered one word that has circled these events since Saturday: “contempt.”

While the judicial branch is a vital player in the system of checks and balances, it has more limited tools in its arsenal to compel obedience than other branches of government. Congress can cut off funds to either the executive or judiciary. The president can veto bills from Congress and also wields an army that could crush another branch. The judiciary has neither the power of appropriation nor an army, but it does have the power to hold officials and agencies in contempt of court, which can lead to penalties that fall, broadly, into three main categories: jail, fines or public shaming. But each of these comes with stumbling blocks, as they require either enforcement by an executive branch agency, or officials who can actually feel shame.

Boasberg could issue fines to agencies or even order Trump officials to be jailed if he finds that they are in violation of his order.

It wouldn’t be the first time a Trump official faced such a penalty. In 2019, a judge held then-Education Secretary Betsy DeVos in contempt for failing to obey an order requiring her to stop collecting certain student loan payments, and issued a $100,000 fine against the Department of Education.

But Trump’s second term is playing out differently than his first. He has taken a far more adversarial approach to both Congress and the judiciary while asserting sweeping powers above both that he believes the Supreme Court already granted him. The judiciary, meanwhile, has a long history of declining to play the kind of hardball that Trump is now willing to engage in.

The DeVos case is one of the extremely few cases where contempt sanctions actually stuck. There have been just 18 cases where a judge pursued contempt sanctions that included fines and just four cases where a judge sought an official’s imprisonment for contempt from 1945 to 2017, according to a 2018 paper by Yale Law School professor Nicholas Parrillo.

And even those cases where judges issued contempt sanctions including fines or imprisonment were almost universally overturned by higher courts. In only two cases has an official been imprisoned for contempt and, in both cases, only for a matter of hours before the order was overturned.

The Trump administration may also be able to undermine any effort at judicial sanctions in numerous ways.

Judicial contempt orders, those ordering jail or fines, are enforced by the U.S. Marshals Service, which is housed within the Department of Justice. Having asserted total control over the Justice Department already, Trump could in theory simply order the Marshals Service to not obey the court’s order to jail an official or collect a fine.

Fines imposed on an agency are designed to force compliance by taking the agencies’ funds and, thus, preventing them from pursuing their policies. Trump could undermine this by ordering any funds be paid from the Judgment Fund, an account controlled by the Bureau of the Fiscal Service for the purposes of paying out settlements against the federal government, as opposed to being paid from an agency’s funds. This would remove any coercive power that judicial contempt fines could have on official action. And since Musk’s so-called Department of Government Efficiency operation has already seized control of the Bureau of the Fiscal Service, Trump would not need to apply much pressure at all to use this fund in the case of contempt fines.

That leaves judges with one final power of contempt findings: shame. Most contempt findings in the past have come with no sanctions. They are instead aimed at shaming officials and creating negative publicity.

“Shaming surely has external consequences, in the sense of threatening the violator’s reputation, and may also have internal psychological consequences, depending on how much the violator has internalized the community’s norms and the authority of judges to decide when they have been transgressed,” Parrillo writes.

But what happens when an administration from the president on down has no shame? What happens when the community they seek to maintain good standing in is not professional, but partisan?

As Trump has shown repeatedly, deviance is to be rewarded. He has pardoned, promoted, hired and appointed people who helped him try to overturn the 2020 election and those who refused to cooperate with investigations into his efforts to obtain the help of Russia in the 2016 election.

Trump has similarly treated any judicial order that goes against him as a personal affront, declaring such rulings as grounds for impeachment of the judge on Tuesday. One GOP congressman introduced an impeachment resolution against Boasberg immediately following Trump’s statement.

A lack of shame creates immunity from shame-based pressure. The only other options are the imposition of financial sanctions or imprisonment that the judiciary has effectively never had the stomach for.

And yet, DOJ lawyers continue to argue in court that they are not violating Boasberg’s order. In a Tuesday filing, they said they would provide the information he requested in private.

This solicitousness to the court may suggest that the administration wants to have it both ways. They want to publicly laugh in the judiciary’s face while doing the bare minimum to placate judges in private. The administration’s public posture of deviance from the courts helps to prepare Trump’s allies and supporters if and when a judge actually does hold it in contempt.

That event may happen in Boasberg’s courtroom or elsewhere. On Tuesday, another federal district court judge issued a preliminary injunction reversing the administration’s destruction of the U.S. Agency for International Development. It came with a warning: “Violations of this Preliminary Injunction shall subject Defendants and all other persons bound by this Order to all applicable penalties, including contempt of court.”

It did not include what those penalties may look like.