Now that multiple court orders are blocking executive actions by the new administration, the Vice President has openly suggested that the executive branch may simply ignore them. That statement risks a constitutional crisis because it challenges a bedrock principle of separation of powers: the holding of 1803’s Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is.”
For over two centuries, Marbury and the concept of judicial review have ensured that no politicians or agency administrators—no matter how powerful—can place themselves above the law. While compliance with court orders has at times been grudging, the President and Congress have consistently respected Marbury in the end because it is part of the glue that holds the Constitution together.
If the Trump Administration is willing to test whether judicial authority can be ignored, how can the courts respond? So far, responses have been rhetoric from the Chief Justice, talk of civil-contempt fines (which a defiant executive could refuse to pay), and speculation about contempt charges for agency officials (whom a defiant executive could pardon). The judiciary’s usual tools for forcing compliance with court orders could easily be ineffective if the entire executive branch refuses to comply.
But identifying that problem — that remedies designed to enforce orders in a specific case don’t work well against a concerted effort to ignore orders in many cases — suggests a potential solution. In other contexts, courts identify the party as the problem rather than the order immediately at hand — for example, a “jailhouse lawyer” serving a life sentence in prison who endlessly files frivolous lawsuits. A body of law has developed about “vexatious litigants” whose filings are simply dismissed out of hand unless they allege an imminent risk of serious harm.
A similar body of law is “judicial estoppel,” a doctrine that prevents a party from taking inconsistent positions in separate legal proceedings. If the executive branch refuses to comply with judicial rulings, courts could invoke judicial estoppel to bar the government from asserting legal arguments or seeking relief in other cases, on the ground that it cannot simultaneously demand judicial enforcement of its rights while rejecting judicial authority.
What if the judiciary treated the federal government itself as a vexatious litigant? Imagine courts refusing to hear broad categories of cases where the United States is a party until the executive branch obeys court orders. The agencies and departments that make up the federal government rely heavily on the courts to enforce contracts, prosecute criminal cases, and otherwise resolve a sprawling range of disputes about the operation of government. . A refusal to entertain some — or most — cases from an Administration that disrespects judicial authority would be a drastic but forceful step—and far more effective than imposing fines that will likely not be paid.
The functional equivalent of a “judicial strike” is a radical idea without precedent. But so is an administration openly contemplating the defiance of court orders and a rejection of Marbury. If court orders can be ignored without meaningful consequence, then courts will be losing cases anyway — and the most impactful ones, where the Constitution’s limits on executive power are at issue.
Public opinion will be critical in this crisis. The judiciary relies on public support for its legitimacy. If courts take any kind of radical step along these lines, they must ensure the public understands the stakes and the role of judicial review in maintaining the rule of law. That requires public-relations savvy that is not the ordinary business of the federal courts. But again, there is no real choice. If the courts cannot explain what is at stake when Marbury is challenged, then their legitimacy will be at serious risk anyway.
This is a radical proposal. But the truly radical idea is that the executive branch can unilaterally decide, after 200 years of success, to jettison Marbury. If the courts are faced with systematic disobedience of their orders, and choose to respond by focusing exclusively on inadequate remedies, both the judiciary and the American people will be the worse for it.
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