Harvard Law Professor: The Case for Ignoring Judges Who Defy SCOTUS

There was a lot of concern a couple months ago that the Trump administration was going to launch the country into a constitutional crisis by defying court orders his administration didn’t like. Some have concluded the administration is already guilty of that in cases involving the deportation of Venezuelan migrants, etc.

But today a Harvard law professor named Adrian Vermeule has offered a contrary opinion on this topic. He says it’s not the Trump administration that is risking a constitutional crisis. Instead, it’s lower court judges in blue states who seem willing to join a mutiny against the Supreme Court whenever it suits them.

The issue of defying court orders is still with us — but it has taken a twist. Now the defiance is coming from inside the judicial branch itself, in the form of a lower-court mutiny against the Supreme Court. District Court judges, and in some cases even appellate courts, have either defied orders of the court outright or engaged in malicious compliance and evasion of those orders, in transparent bad faith…

Consider Judge Brian Murphy of the Federal District Court in Massachusetts. Judge Murphy issued a preliminary injunction against the transfer of removable aliens to third countries, in cases in which the transfer was expressly permitted by federal law. So far, this was just an ordinary example of judicial overreach.

But after the Supreme Court issued an order to stay — that is, to stop — the preliminary injunction while litigation proceeded (over a dissent by Justice Sonia Sotomayor), Judge Murphy went beyond overreach. He decided that his order enforcing the injunction that the court had stayed nonetheless remained in effect — a proposition for which his only cited authority was the dissent from Justice Sotomayor. This seemed to be malicious, whether or not it counts as “compliance” at all. The Supreme Court, with the notable concurrence of Justice Elena Kagan, then had to stay this second order and explain that Judge Murphy’s renewed effort was also illicit.

In a similar episode, a Federal District Court judge in Oregon held that the Department of Homeland Security could not engage in mass terminations of parole status for a class of migrants, and in doing so cited earlier lower-court decisions that had blocked similar executive action — but somehow omitted that the Supreme Court had already stayed those other lower-court decisions.

These examples are hardly isolated. In Trump v. Wilcox, the Supreme Court stayed orders from the Federal District Court in Washington that would have blocked the president’s removal of members from two important federal agencies, the National Labor Relations Board and the Merit Systems Protection Board. The court emphasized that the government was likely to prevail because these agencies exercised substantial executive power; hence, under existing law, the president’s removal power could not be limited. Nonetheless, a panel of the Fourth Circuit recently declined to stay a District Court order enjoining presidential removal of members from the Consumer Product Safety Commission, a legally indistinguishable agency.

The Supreme Court then granted the stay, explaining that the case was “squarely controlled by Trump v. Wilcox” and that the court’s orders on the emergency docket should inform how a lower court “should exercise its equitable discretion in like cases.”

He offers a few more examples, all of them since Trump took office. Vermeule says this is mostly the result of forum shopping by the left-wing activists who are bringing these cases. They find a partisan judge in a deep blue state who is willing to back their complaint for the glory of being part of the resistance to the Trump administration.

What is the president to do under these circumstances where federal judges choose to defy the highest court in the land? Verumule suggests the executive branch could choose to politely ignore decisions which it determines the Supreme Court has already ruled on (in its favor).

The final recourse in the system — a controversial and rarely used fallback — is what is described in constitutional theory as “departmentalism”: The president may ignore a judicial order that, on the president’s independent interpretation of the law, exceeds the scope of judicial power, as when a District Court were to purport to bar the president from granting a pardon or vetoing a bill…

The general merits of departmentalism are much debated. It is strong medicine that risks doing more harm than good overall, and that by its nature requires controversial judgments by the executive.

But whatever its usual merits, the case for it here is different and unusually strong. When a lower court’s order attempting to limit the executive is also an act of mutiny against the Supreme Court, the issue is not conflict between branches, but the legitimate hierarchy of authority within the judicial branch.

As you can imagine, it’s very unlikely the resistance media would ever give the Trump administration the benefit of the doubt for making this argument. Any such decision would immediately be seen as a constitutional crisis being created by the president, not by the judge defying the higher court. Even if SCOTUS were to intervene and directly back the executive, this would be framed as a further sign that SCOTUS is compromised rather than that the federal judge in Maryland or Massachusetts was out of line. The media always starts from the proposition that whatever Trump does is wrong and works backward from that point.

Still, give credit where it’s due. At least the NY Times published an opinion piece offering a different take from the one you hear day after day in every news outlet. I wonder if, like the Sen. Cotton op-ed from 2020, this one will lead to an internal revolt at the paper.

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