www.democracydocket.com/…
As it becomes more common and likely for the Trump administration to defy court orders the typical end result is contempt followed by an arrest by the US Marshals. However the going concern has been with the tiny insignificant detail that…The US Marshals report to the DOJ. What happens then if the marshals are told to refuse an order from the Judicial branch by the President or the Attorney General? This concern has come up often in recent months and typically I see the response as an uncomforting—well hopefully it doesn’t come to that.
This potential nightmare is further given cover by the pardon power of the President to any subordinates who refuse to go along with the order.
The good news is, there is probably at least one path around this, maybe more, though it does take some judicial courage. A legal professor wrote an article linked in Democracy Docket above that there is legal language stipulating that orders from the judicial branch can be enforced by US Marshals or “a person specially appointed for that purpose.”
So if the courts have the guts if/when this moment comes to ensure their legitimacy remains through enforcement then there are avenues to do so.
I’m not a lawyer but this topic interested me before I came across this article and also had been already wondering if the Supremacy clause and the interpretations of cooperative state and federal authority precedents could also be interpreted that state AGs and law enforcement or national guard could be utilized.
I mean the supreme court did give personhood to corporations and then free speech etc. to them so…this is a much milder interpretation.
In the end it will probably come down to the courts’ interpreting new meanings and extensions and the state governments assisting in some way—if those sides have the guts.
Nevertheless I find it useful to have in mind it is at least plausible there are mechanisms to manage the constitutional crisis in this sense if it emerges (or likely when given the trajectory we are seeing).
