President Trump’s latest adversary is the judicial branch.
Yesterday, Trump called for the impeachment of a judge who had ruled against him, earning a rare rebuke from the chief justice of the Supreme Court. The administration had ignored the judge’s order to stop deportations over the weekend, saying the government would heed only his written command, not a spoken one.
It was hardly the first sign of trouble. Trump’s lawyers have peddled distortions and lies in court, as my colleague Charlie Savage explained. They’ve also said a judge can’t meddle in Trump’s work protecting the United States from threats. His aides have suggested that the president can ignore rulings.
All three branches of government are, in theory, equal; Congress passes laws, presidents enforce them and judges interpret them. That’s the norm, anyway. Historically, presidents almost always respect what the courts say, even if they disagree. They obey judges. Their representatives don’t lie in court or claim exemption from judicial oversight.
But the United States may soon find out what happens when those norms no longer hold. Trump and his lawyers are challenging the balance of power among the branches of government. Experts worry this is the beginning of a constitutional crisis.
Is it? Today’s newsletter looks at the signs of peril — and the signs that America’s constitutional order is holding up for now.
The dangers
Judicial review is the concept that judges can strike down laws if they violate the Constitution. The notion came from the Supreme Court’s 1803 decision in Marbury v. Madison, and it made the court a backstop to the excesses of Congress or the presidency.
But the decision came with a quirk: The Supreme Court can’t actually enforce its rulings. It relies on the president and Congress to believe in the courts and take their judgments seriously. Some presidents have challenged the court in minor ways, and Andrew Jackson defied it brazenly when he allowed Georgia to expel Cherokees from their land.
But presidents have unhappily followed the Supreme Court’s judgments over the past century and a half. Barack Obama abided by the court’s decision after it limited Obamacare’s requirement that health insurance plans cover contraception. In response to rulings, George W. Bush adjusted his plans to put Guantánamo detainees on trial.
Trump and his allies question that tradition. The administration has ignored a raft of lower court rulings over deportations, agency staffing and government funding. Trump himself has suggested that he’s above the courts. “He who saves his Country does not violate any Law,” he said online. His vice president, JD Vance, has said that “judges aren’t allowed to control the executive’s legitimate power.” Vance adapted an apocryphal quote attributed to Andrew Jackson: “The chief justice has made his ruling. Now let him enforce it.”
All of this, experts say, amounts to a red flag for the constitutional order.
Averting crisis
Still, America may not be in a crisis yet. Republicans in Congress have not actually impeached any judges. A judge has not yet held Trump or anyone in his administration in contempt. The administration has not defied the Supreme Court — only lower court orders; that still breaks dangerous new ground, but those rulings are not always final.
Some Trump supporters argue that he is challenging a narrow aspect of the judicial branch, not the whole constitutional system. For years, experts and members of both parties have complained about how much power lower courts have. A single federal district judge from Sherman, Texas, for instance, can stop an executive order across the whole country, as when a jurist stopped an Obama-era rule requiring overtime pay for millions of workers. Litigants can shop around for sympathetic judges, all but guaranteeing their victory until a higher court weighs in.
Even believers of judicial review can, and do, take issue with this dynamic.
The red line
The real danger, then, is if Trump openly defies a Supreme Court ruling. That will send a clear message: The president is above the judicial branch. America’s constitutional system requires the president to believe in checks and balances; it falls apart if he doesn’t.