Constitutional Crisis: How Courts Should Anticipate Trump’s Defiance
Trump admires Andrew Jackson for a reason
President Donald Trump recently defied a judge’s order to release billions of dollars in federal grants. The money had already been allocated by Congress to the states to pay for “Medicaid, school lunches, low-income housing subsidies, and other essential services.” Contempt charges, fines, and even imprisonment could follow for the government lawyers and officials who refuse to follow the judge’s order.
This will not be the last time you read this fact pattern. Some legal scholars are already calling it a constitutional crisis, meaning that Trump is defying the U.S. Constitution’s system of separation of powers, checks and balances, and the rule of law.
The early defiance from Trump’s second administration illustrates how it’s intent on pushing through its agenda at all costs, other branches of government be damned. We are not even one month into his presidency and his administration has issued 65 executive orders to date, already more than the 60 President Joe Biden issued in his first 100 days in office (many of which were reversals of the first Trump administration’s orders).
The main difference is that the Biden administration never defied a judge’s order ruling against them. Even Richard Nixon obeyed an order to hand over the White House tapes that he knew would incriminate him.
But that’s not to say that U.S. Presidents have never defied the other branches of government. President Andrew Jackson, whose portrait hangs in Trump’s Oval Office, infamously said: “[Chief Justice] John Marshall has made his decision; now let him enforce it.”
The Supreme Court decision that President Jackson defied? That the state of Georgia had violated the Cherokee Nation’s sovereign status. President Jackson ignored this ruling and forced the removal of the Cherokee and other tribes in what became known as The Trail of Tears, resulting in the deaths of thousands.
Trump has indicated his early intent to at least push the limits of defiance similarly if the courts hold up part of his agenda. Vice President JD Vance expressed this intent pretty explicitly in this tweet:
It comes down to what JD Vance means by “legitimate.” While a strong case could be made for some of the Trump administration's executive orders like levying tariffs or even removing DEI considerations in executive branch hiring, others can hardly be viewed as “legitimate.” Freezing already appropriated federal spending, for example, disregards Congress’s power of the purse, while ending birthright citizenship, as guaranteed under the 14th Amendment, blatantly violates the U.S. Constitution, which no good faith interpretation could justify.
It’s hard to know whether the flurries of Trump’s executive orders are mostly noise, flooding the zone to see what he can get through, and which ones are key to the administration’s agenda. Similar to how Matt Gaetz was a sacrificial lamb, but RFK Jr. and Pete Hegseth were non-negotiable unless Republican Senators wanted well-funded primary challengers.
Whatever the case may be, courts should anticipate that Trump will try to jam through as much as possible. He wants to keep his critics and opponents on defense these next four years, and especially in the early days of his administration where momentum is on his side.
Following January 6th, we’ve witnessed what Trump and his supporters are capable of should someone try to check or remove their power. How’s Mike Pence doing these days? With Congress effectively in Trump’s control (as evidenced by the approval of very controversial cabinet appointments), you can be sure that any check imposed by the judiciary will be met with pressure (at a minimum) not only by Trump but by his most ardent supporters.
Here are a couple of ideas on what the courts should do in anticipation of further defiance and pressure from the Trump administration, which could lead America into a full-blown constitutional crisis.
Pick the most logistically challenging case to initially check Trump’s power
While the Trump administration may play fast and loose with lower court judges, once some of these cases reach the Supreme Court, it’s a different ball game. If President Trump defies Chief Justice John Roberts like President Andrew Jackson did Chief Justice John Marshall, chaos will ensue. It will signal to the other branches and to the world that the executive branch has more power and authority than the judiciary; and that the judiciary is effectively beholden to the executive branch and lacks independence, which is typically a cornerstone of a healthy democracy.
Justice Roberts undoubtedly foresees this potential threat. When President Jackson defied the courts, the Supreme Court had a short history and little institutional legitimacy. Roberts knows that the public opinion of the current court has suffered in America’s hyperpartisan political environment, and he will likely act with the institution’s credibility in mind.
One of the best ways to preserve what’s left of the court’s credibility is to choose the most logistically challenging case to check Trump’s power. Of all Trump’s executive orders, there is none more complicated than removing birthright citizenship.
Currently, the law is simple. Anyone born subject to the jurisdiction of the United States (i.e., within U.S. territory) is automatically a citizen. No questions asked. This has been enshrined under the 14th Amendment since 1868.
If the executive branch wanted to defy this constitutional right, they would need to develop a system for checking the citizenship status of parents at the time their children were born. This would be a logistical nightmare across all 50 states, requiring massive amounts of manpower and systems of record.
The current makeup of the Supreme Court could validate Trump’s effort. It’s a definite possibility given how they’ve ruled in other cases that lacked clean precedents (see abortion and presidential immunity). But unless they create a new definition for the word “jurisdiction” and ignore well over a century of history, it’s hard to imagine even this Supreme Court striking down birthright citizenship.
Assuming that’s the case and the Supreme Court wants to uphold birthright citizenship, as guaranteed under the 14th Amendment, they should come out of the gates with this case first. The court should hold on deciding all other cases. If they prohibit Elon Musk, an unelected bureaucrat, from seeing taxpayer social security numbers, Trump could too easily defy it and grant Musk access.
If the court really wants to check Trump’s power, the point is to make it difficult for Trump to disobey. Force him to work for it. Require that his executive branch set up an elaborate system to prevent newborn babies from receiving automatic citizenship unless parental citizenship can be demonstrated.
It’s not an easy case to disobey because it requires the creation of more bureaucracy. Therefore, it’s the perfect vehicle for the court to drive at the start to avoid hazards and a constitutional crisis.
Flood the zone with what will happen if the courts are defied
To check Trump, you have to beat him at his own game. And that game is dominating the messaging. Trump constantly plays offense, trying to keep his opponents off-balance and shocked. The courts should do the same.
Lower-level government lawyers and officials who even slightly defy court orders or veer into contempt should be hit with warnings of disbarment, fines, and imprisonment. Warnings should escalate to action as violations occur.
Similar to handling a mob boss, if you get the soldiers at the bottom rungs of the family, they have the least protection. While some will undoubtedly act as martyrs and Trump can dangle his pardon power or simply instruct the Justice Department not to prosecute, it will be important for the public to witness.
The main reason for its importance? American business. Supreme Court justices in particular should make it vividly clear that what has separated America from many other jurisdictions globally is certainty. Foreign investors have known for over a century that property rights and the rule of law are respected guarantees in America. Businesses want certainty.
If Trump defies the courts, it will have to be a repeated act. One act of defiance will not be enough to achieve something like freezing federal spending or ending birthright citizenship. These repeated acts of defiance will be broadcast publicly for the world to witness.
Foreign and domestic companies will see what is happening to the courts in America and will lose faith. Financial markets will lose confidence. Foreign direct investors will flee to safer (and more certain) havens.
Defying courts is simply bad for business. And if anyone judges himself by a stock market scorecard, it’s President Trump. The courts should not be shy about warning of these likely calamities early and often.
Watch what Trump does, not what he says
Whatever you think of President Trump, it’s hard to argue that he doesn’t have exceptional political instincts. He can sense which way the political winds are turning and he’s quick to adjust his strategy. In the meantime, he will say anything and everything as he floods the zone and tests what he might be able to do with impunity.
This is why anticipating his actions is more important than taking his words literally. Focusing on deterring a constitutional crisis by making it known how devastating it would be for the credibility of America’s judiciary, financial markets, and American business at large, should be enough to make Trump at least pause before taking decisive action.
Defying the courts may have worked in President Andrew Jackson’s day. But the world was far less connected, businesses didn’t regularly operate internationally, and capital markets were in their infancy in America. A stable and predictable independent judiciary was not as imperative to guaranteeing basics like property rights and the rule of law as it is today.
If Trump intends to push through his agenda at all costs, he should expect it to cost the United States and his political legacy far more.
On a lighter note…
I am trying all of the best bagel spots in New York City (according to The New York Times) — here’s the latest
New essay: How I (Finally) Monetized My YouTube Channel Through Personal Storytelling
New essay: ‘Thinking, Fast and Slow’ May Be the Most Helpful Book I Have Ever Read