Over the past 20 months, there have been nearly one thousand federal court actions filed against the Trump-Vance administration for its excesses – and that does not include the thousands of habeas petitions that have been filed by lawyers for immigrants and others detained by the government to remedy the systematic violations of due process by the federal executive branch. The president and his administration have suffered setbacks in the overwhelming majority of these cases – including losses from judges President Trump himself appointed in his first term. This bruising record is what happens when the president and his associates govern in a way that is on a collision course with the Constitution.
Our organizations have filed a number of lawsuits on behalf of people, communities, businesses, and civic institutions whose rights have been violated by the executive branch. But unlike in prior administrations, it is no longer enough to win court orders to protect people’s rights from executive overreach. Now, whenever we secure a court order protecting the rights of people and communities, an immediate question surfaces: will the administration comply?
This is a question that not just lawyers and judges are asking – the American public is deeply concerned. The vast majority of Americans expect the president and executive branch more broadly to comply with court orders – an expectation that extends across party and political lines. People expect justice to be served, and when lines are crossed and justice feels unequal, they are rightfully appalled and in some cases are ready to mobilize and protest. A recent analysis found federal judges have had to issue more than 35 court orders questioning whether the administration should be held in contempt of court. In Minnesota, the chief federal judge counted more than 200 violations of court orders by ICE, noting it was aware of no other time in U.S. history when a federal court had to threaten contempt repeatedly.
Over the past 20 months, in many cases, our organizations have had to use litigation tactics such as holding status conferences, filing motions to enforce, and seeking discovery regarding the government’s conduct to, by and large, secure the government’s compliance with court orders. But, over the past few weeks leading into the elections, the government’s lack of candor and disregard for court orders has seemingly intensified.
After a federal judge issued an order on a Sunday night blocking taxpayer funds from being used to air President Trump’s partisan ads, the ads continued to run. In the case involving East Potomac Park, a federal judge has opened a formal inquiry into whether Justice Department lawyers and administration officials acted in bad faith or misled the federal court when the federal government removed hundreds of trees in pursuit of the President’s plans to remake a municipal golf course. In several other cases, the administration has clearly acted in defiance of court orders, from ICE surveillance in protected spaces to announcing policies in clear opposition to the judicial mandate. (As a matter of disclosure, Perryman leads Democracy Forward, which serves as counsel in many of these cases).
What’s worse is that the administration isn’t just treating court orders like suggestions that do not have to be heeded; it is attacking judges when the judges dare to inquire about compliance with their orders. In early 2025, the administration failed to comply with a federal court order blocking the administration from using a war-time law (when the nation was not at war) to remove Venezuelan migrants to a gulag-like prison in El Salvador without any process at all. Too many congressional Republicans responded to the Constitutional crisis not with oversight of the administration but with calls to impeach the federal judge who issued the court order. Gaslighting judges through attacking them, filing motions to disqualify them and even suing them has become an all too common response of the government when judges seek to enforce their orders.
Government adherence to the rule of law has largely been a throughline that has spanned political parties and administrations throughout our history. Now during our 250th year, that line has been broken.
The Need for Accountability
And, yet, despite the escalating concern, there has been little accountability. Not only have the president’s allies in Congress at times bandwagoned to attack judges, but last year they sought to rush through a provision as part of the bill to fund the government that would make it harder for the courts to enforce orders against the government. Although that provision was removed from the bill in the later stages by the parliamentarian, it put what’s at stake in sharp focus: the courts are providing one of the only checks on the administration’s power, and so the administration and its allies want to weaken the courts.
The system is becoming more fragile by the day, with the lawless conduct intensifying as we head into elections.
In response, it is imperative that the legal profession assert itself more forcefully by asking courts to use their power to probe compliance with their orders and to enforce them. State bars must be willing to hold lawyers accountable who break their ethical duties of candor to the courts. And judges have to be willing to more quickly take steps to enforce their orders when compliance is compromised and to use their power to penalize those who fail to comply.
Yet, even with a more aggressive stance, one branch of government (the courts) cannot fully check the other (the president) without a third branch (Congress) willing to put its thumb on the scale. To date, Congress has done just the opposite, accelerating this Constitutional collision course as opposed to slowing or stopping it, with the president’s allies on the Hill kowtowing to him rather than serving as the check that our constitutional system requires.
Without a more fulsome legislative check, the courts will continue to face an increasingly hostile and recalcitrant administration. But a new Congress, though it would be unable to completely force compliance with court orders, can make executive branch defiance of court orders far more costly. For example, through its oversight powers Congress can investigate officials’ compliance with court orders, including holding hearings, putting defiant officials under oath, and making disciplinary referrals to state bar associations. Given how unpopular lack of compliance with court orders are, this type of public accountability can be useful in creating costs for lawbreakers as well as providing information under oath that could build civil or other contempt or disciplinary proceedings. Congress can also require that the DOJ regularly report on compliance with all outstanding injunctions. Congress can use its spending power to fund the judiciary, including security, and courts’ ability to enforce their orders in ways that the DOJ does not control. Lawmakers can also use the appropriations process that would bar funds for actions courts have enjoined. Most importantly, Congress can block bills or other attempts to weaken existing enforcement with court orders. These are all measures that will be important in the years ahead under this and any future administration.
All of this will be imperative because the White House is already poised to take actions in the near future through the executive branch without Congress and that will require aggressive challenges in court.
The Constitution is not self-executing. Countless lawyers and judges have done their part and must be even more vigilant in defending the rule of law going forward. The Constitution can’t defend itself, but the people can defend the Constitution.
