Presidents Musk and Trump are not above the law. We hope.
By Marjorie Cohn , in Truthout
States, public interest organizations, schools, doctors,
unions, immigrants, federal workers and individuals have filed more than
60 lawsuits challenging Trump’s legal
authority to take these actions. At least nine judges throughout the country
have temporarily halted several of them.
Courts have put temporary holds on Trump’s attempts to: end birthright citizenship for children of undocumented immigrants, freeze billions of dollars in federal spending appropriated by Congress, transfer incarcerated transgender women to men’s prisons, remove scientific data from the websites of the Centers for Disease Control and Prevention and the Food and Drug Administration, give his de facto co-president Elon Musk unfettered access to sensitive Treasury Department records, and put 2,200 United States Agency for International Development (USAID) employees on leave.
The White House alleged that rulings against the
administration were made by “judicial activists” and their decisions constitute
a “constitutional crisis.” But it is Trump’s noncompliance with some of those
court orders that is threatening to end the rule of law in the U.S.
OMB Refuses to Follow Judge’s Order Prohibiting Freezing of Federal Funds
On January 31, John J. McConnell Jr., chief judge of the
U.S. District Court for the District of Rhode Island, issued a temporary restraining order (TRO)
prohibiting the Office of Management and Budget (OMB) from freezing federal
funding and refusing to resume disbursements of congressionally appropriated
federal funds. Nevertheless, officials in the administration continued to
improperly freeze federal funds and refused to continue disbursing funds that
had been appropriated.
When he issued the TRO, McConnell wrote, “The Defendants now
claim that this matter is moot because it rescinded the OMB Directive. But the
evidence shows that the alleged rescission of the OMB Directive was in
name-only and may have been issued simply to defeat the jurisdiction of the
courts.”
The 23 Democratic attorneys general who brought the original
lawsuit in Rhode Island federal court against Trump and several of his
officials filed a motion for enforcement of the temporary restraining order.
On February 10, McConnell granted the plaintiffs’ motion and
ordered the defendants to immediately do the following: restore frozen funding,
end any federal funding pause, clear any hurdles to implementation, comply with
the plain text of the TRO, restore withheld funds (including those appropriated
in the Inflation Reduction Act and the Infrastructure Improvement and Jobs
Act), and resume funding of institutes and other agencies, including the
National Institutes of Health.
Judge McConnell began his order with this language from the
1975 Supreme Court decision in Maness v. Meyers:
[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. The orderly and expeditious administration of justice by the courts
requires that an order issued by a court with jurisdiction over the subject
matter and person must be obeyed by the parties until it is reversed by orderly
and proper proceedings.
McConnell referred to the “plain language of the TRO” and
noted that “The Defendants acknowledged that they understood what the TRO
required.”
“It’s very rare for a president not to comply with an
order,” Victoria Nourse, director of the Georgetown Law Center on Congress and
Democracy, told The New York Times. “This
is part of a pattern where President Trump appears to be asserting authority
that he doesn’t have.”
It is also unusual for a court to accuse a party of not
following its ruling, retired federal judge Nancy Gertner said on NPR’s
“Morning Edition.”
On February 10, plaintiffs in another lawsuit said the Trump administration was
continuing to place employees of USAID on administrative leave, notwithstanding
a court order that they stop.
The Courts Have the Power to “Say What the Law Is”
Officials in the Trump administration are signaling their
intention to disobey judicial rulings with which they disagree.
The legal way to challenge an adverse judicial ruling is not
to disobey it or impeach the judge who issued it. It’s to file an appeal with a
higher court.
“Judges aren’t allowed to control the executive’s legitimate
power,” Vice President J.D. Vance posted on X, attacking an order by
U.S. District Judge Paul A. Engelmayer that Musk and his young muskrats at the
“Department of Government Efficiency” (DOGE) could not have access to the
Treasury Department’s vital payment systems containing sensitive data. Implicit
in Vance’s declaration is that the president decides whether the power he is
exercising is legitimate.
Trump echoed Vance’s condemnation: “No judge
should frankly be allowed to make that kind of a decision. It’s a disgrace.”
“Vance’s arguments, if one can call them that, are entirely
without merit and sound to me like strong hints that the White House and its
Musk contingent are planning to ignore court rulings that they find
inconvenient or that they see as hostile to their takeover agenda,” Laurence
Tribe, professor emeritus at Harvard Law School, told NBC News.
Musk also slammed Engelmayer. “A corrupt judge protecting
corruption. He needs to be impeached NOW!” Musk posted on X.
Sen. Tom Cotton (R-Arkansas) called Engelmayer’s ruling
“outrageous” and wrote on X, “This outlaw should be
reversed immediately and Engelmayer should be forbidden by higher courts from
ever hearing another case against the Trump admin.” Rep. Darrell Issa
(R-California) pledged to introduce legislation to
“stop these rogue judges and allow Trump and DOGE to tell you where the
government is spending your money.”
Congress, however, has shown little appetite for reining in
the worst excesses of Trump’s blitz.
The legal way to challenge an adverse judicial ruling is not
to disobey it or impeach the judge who issued it. It’s to file an appeal with a
higher court.
The Supreme Court established the principle of judicial
review in the 1803 case of Marbury v. Madison. “It is emphatically
the duty of the Judicial Department to say what the law is,” the court said.
The holding rested on the constitutional doctrine of separation of powers based
on three co-equal branches of government — legislative, executive and judicial.
“There’s no point in separating the judicial from the
executive if the executive can just ignore what the courts have decided,” said Saikrishna Prakash, a law
professor at the University of Virginia.
It is the legislative branch that has always decided how to
structure the executive branch by establishing federal agencies and
appropriating money to fund them. But consistent with Project 2025’s goal of “deconstruction of the administrative state,”
Trump has effectively shuttered the Consumer Financial Protection Bureau and
USAID. He has defanged the National Labor Relations Board, the Equal Employment
Opportunity Commission and the Privacy and Civil Liberties Oversight Board.
He’s also moving to abolish the Department of Education.
The Constitution says that the president has a duty to “take
Care that the Laws be faithfully executed.” But Russell Vought, director of the
Office of Management and Budget, and chief architect of Project 2025, said in 2022 that we are living in a
“post-Constitutional time.”
Stanford law professor Pamela Karlan warns of a
constitutional crisis “when the president of the United States doesn’t care
what the Constitution says.” Although presidents have engaged in
unconstitutional acts, “I never had the sense that there was a president for
whom the Constitution was essentially meaningless,” she told The New York Times.
In his December 2024 year-end report, Chief Justice John
Roberts noted that in the past few years,
elected officials on both sides of the aisle have “raised the specter of open
disregard for federal court rulings.” He declared, “These dangerous
suggestions, however sporadic, must be soundly rejected.”
But Karlan is worried that the Supreme Court might uphold
Trump’s actions because he would ignore their adverse rulings. “The idea that
courts should preserve the illusion of power by abdicating their
responsibilities would just make the constitutional crisis even worse,” she
warned.
In 1953, Supreme Court Justice Robert Jackson said that the
power of the high court is that it gets the last word in legal disputes. “We
are not final because we are infallible, but we are infallible only because we
are final,” he wrote in Brown v. Allen.
If a party disobeys a court order, the judge can hold them
in contempt, impose fines and even imprison them. The marshals would be charged
with enforcing a custodial order. But the Marshal Service is part of Trump’s
Department of Justice, and he would likely order them not to comply.
“At that point, you have a full-on constitutional crisis,”
former Judge Gertner said.
Marjorie Cohn is professor emerita at
Thomas Jefferson School of Law, dean of the People’s Academy of International
Law and past president of the National Lawyers Guild. She sits on the national
advisory boards of Veterans For Peace and Assange Defense, and is the U.S.
representative to the continental advisory council of the Association of
American Jurists. Her books include Drones and Targeted Killing: Legal,
Moral and Geopolitical Issues.
