Among the many peculiar characteristics of the recently elected President is Donald Trump’s unwillingness to follow the ordinary and established norms of the office of President. In some cases, these are not binding laws but traditions or rules of custom and decorum. Presidents traditionally, for example, release their taxes for greater transparency and as a bulwark against even the appearance of impropriety. Customarily, Presidents agree to avoid conflicts of interest and divest as necessary. Other rules are, for certain, binding legal proscriptions, such as those contained in the Emoluments Clause. President Trump has thus far refused—despite in some cases earlier promises, such as his commitment to release his tax returns—to follow any of these sorts of established norms.
It is not at all surprising then that a President so willing to transgress the most well-settled rules and reasonable expectations, is seen by some in his administration to give them license not to follow norms either. That’s how such authority and institutions work. As a result, it cannot be entirely unexpected that when he issued what the President termed a “ban” on Muslims entering the U.S. from certain countries, and federal judges ordered, as one example, the Department of Homeland Security provide the detained access to lawyers, that such officials were reportedly comfortable flouting a federal court order. In light of the President’s predilection for transgression, non-compliance with judicial decrees by his administration will likely not be an isolated matter—that is, if left unchecked.
This intolerable situation is precisely why courts should be prepared to exercise inherent and statutory contempt powers more rigorously. Permitting even small-scale or symbolic disobedience to lawful decrees would be exceedingly dangerous. Whether one agrees or disagrees with a particular court order, federal officials especially must comply or must be coerced to comply. They can appeal as appropriate to be sure, but allowing defiance of court orders weakens the very fabric of our legal system and undermines a key attribute of good governance – the rule of law. Rule of law is what distinguishes nations with relatively effective governance from those underdeveloped ones in cyclical crisis.
It is not alarmist to say that the erosion of rule of law in the U.S. would be, over time, cataclysmic. We know this because there are too many examples in the world today where there is an absence of rule of law. In such places, norms are followed with far less regularity, with dire consequences for effective and stable governance and the ultimate prosperity and security of society.
In certain countries, for example, citizens do not view the courts as equitable arbiters of disputes, either because the judiciary is perceived as packed with cronies of the ruling party, has a history of corruption, or other serious institutional infirmities. A recent case to better illustrate: In the Spring of 2015, Burundi’s President Pierre Nkurunziza sought to run for a third term. Armed with a novel interpretation of the constitution and ignoring the governing treaties, Burundi’s highest court agreed that Nkurunziza could seek re-election. He ran and won. However, because of the utter absence of trust of the judiciary by citizens who lacked confidence that the court had the capacity to resolve disputes fairly, Burundi fell into a state of utter chaos from which it has yet to emerge. At the end of the road, that is what lack of rule of law looks like.
If citizens of a nation do not trust their judicial or other institutions to settle disputes equitably – whether commercial, political or other – then disputes will be resolved by other means, usually involving corruption or violence. What is more, it is self-evident that for any judiciary to serve this vital function of resolving disputes in a peaceful and legitimate manner, it must exercise effective means of enforcing its own decrees.
In short, a necessary but not sufficient condition of effective governance and ultimately stability, security and prosperity for nations is ensuring that courts have both the perceived legitimacy among the citizenry and actual power to resolve disputes and ensure the rule of law.
This brings us back to the peculiarities of President Trump and his administration. The United States has a long history, going back to Marbury v. Madison, of courts deciding what the law is and enforcing lawful decisions. And other than the occasional aberration such as President Andrew Jackson’s refusal to enforce the decision of Chief Justice John Marshall in the Cherokee Nation cases in the early 1830s, judicial decrees have reigned supreme, and through their regular and systematic enforcement established this as a nation governed by the rule of law. That system of rules and norms is a critical stabilizing force for sound democratic governance.
For that reason if the Trump Administration fails to obey judicial decrees, it must be met with regular reliance by the judiciary on enforcement mechanisms such as contempt. Otherwise, the rule of law – the hallmark of successful governance – will erode. While the U.S. will not devolve into an ungovernable state like Burundi or South Sudan overnight, the erosion of rule of law will seriously damage one of the essential pillars of our democracy. Countenancing even a temporary failure to comply will simply encourage greater noncompliance.
Contempt proceedings are effective because they immediately and convincingly personalize the cost of transgression. One does not jail the Customs and Border Protection Service; rather, a specific offending official is personally held to account in a civil contempt proceeding. By consistently personalizing the requirement to fulfill a judicial decree under jeopardy of incarceration in appropriate cases, the courts provide the official a clear choice. In this way, the courts play the essential role of ensuring that we remain a nation of laws.
To be clear, I am not advocating that courts should use a different standard with the Trump Administration than it would ordinarily use in any other circumstance. Nor do I have any quarrel with the judicial admonishment that in contempt proceedings courts should use “the least possible power adequate to the end proposed.” My point is simply that because of the extraordinary belief of this President that he can act above the law, the courts should be prepared to use contempt authority more frequently than they have had to before. As for the role of the public, Americans should better appreciate how essential this particular authority is in maintaining effective governance.
It may well be the case under a normal presidency where law and custom are followed, where truth rather than “alternative facts” guide, and where domestic and international stability is a key objective of the administration, that federal officials may be given the benefit of the doubt initially. But not here, not now. The President and his inner circle have made clear their predispositions to transgress our sacred trust and have demonstrated contempt for the rule of law. We are in unchartered waters and it requires an unconventional approach.
Since Trump’s election, many commentators have expressed deep concerns, some on the verge of hysteria, regarding the impact he may have on our democratic institutions. They cite his plain autocratic tendencies and attempts to discredit important institutions – the media, the intelligence community and the national security bureaucracy, judges, and civil society, among others. Trump’s instincts are no less autocratic than Orban, Erdogan, Chavez and Putin.
Nevertheless, I do not share the pessimism of these commentators. While we must remain vigilant in the Trump era and steadfast in defense of our values, we are not Hungary, Turkey, Venezuela or the Russian Federation. What distinguishes us are our institutions, which I believe are far more resilient. Our civil society is stronger. Our democratic traditions sturdier. We have a foreign service officer and civil servant class that is a bulwark guarding our values as a Nation. We have a society with an enduring faith in the Constitution.
At the same time, we cannot underestimate the necessity of a strong and independent judiciary with the power to coerce compliance. As we have already seen, the courts will play an outsized role in the Trump era. And they will play that role effectively by ensuring compliance with the law, under pain of contempt where necessary.
[Editor’s Note: For more on this topic, read Faiza Patel’s “Explainer: Officials in Contempt of Court Orders on #MuslimBan—Tracking All the Cases“]