As a professor of voting rights and constitutional law, my phone has been ablaze in the past few weeks with texts from friends and family about the latest legal atrocity. “Will Trump try to run for a third term?” they ask. “Will we still have a Constitution?”
My typical response is that we should not indulge the president’s wild notions that keep us spinning our wheels. No, he can’t run for a third term (absent a constitutional amendment, which would have virtually zero chance of passing). Yes, the Constitution—at least in a formal sense—will endure. We will have federal elections in 2026 and again in 2028.
But here’s what keeps me up at night: What if Trump, Elon Musk, or someone else in the Trump administration refuses to follow a court order? That’s the looming constitutional crisis. On Monday, a federal judge in Rhode Island determined that the Trump administration was not fully complying with its prior order to pause its funding freeze and demanded that the administration unfreeze funds.
What if the Trump administration simply ignores that order?
Already, there are signs that those in Trump’s orbit are setting the groundwork to undermine judicial decisions.
Litigants have gone to court to stop the flurry of executive orders that are fundamentally reshaping our government, filing over 40 lawsuits in the past few weeks. For their part, jurists have stopped the spending freeze; paused an order that purports to end birthright citizenship, which is a key tenet of the Fourteenth Amendment; rejected a deadline for federal employees to accept a buy-out stemming from the infamous “Fork in the Road” email; and more.
As a federal judge in Seattle, appointed by President Ronald Reagan, explained in one of the birthright citizenship cases, “The President cannot change, limit, or qualify this Constitutional right via an executive order.”
In response, the Trump administration is attacking the judiciary. Vice President JD Vance posted on X, “Judges aren’t allowed to control the executive’s legitimate power.” Of course, the very question is whether the executive’s actions are within its “legitimate power.” If not, then courts must step in to declare the orders unlawful. Vance also retweeted conservative Harvard Law Professor Adrian Vermeule, who posted, “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”
That’s wrong. Judicial oversight of a co-equal branch is precisely the role of separation of powers.
Musk retweeted a post saying, “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us if they’re going to blatantly disregard the constitution for their own partisan political goals?” Vance retweeted a post from columnist Kurt Schlichter, which said, “What if the judicial decision is lawless? A key component of the constitutional framework is judicial modesty, which is backed up by the fact that the judiciary has nothing to compel obedience, except its credibility.”
That last sentence is correct: the judiciary has little to compel compliance except the norms that have sustained our democracy for over 200 years. The first part of the post is scary: is the Vice President suggesting that the administration should not comply with court orders because he believes they are somehow “lawless”?
The way to challenge a decision is to appeal to a higher court, not to claim that courts are “lawless” and their rulings unworthy of respect. A failure to comply with court rulings would create the most serious constitutional crisis.
The idea of judicial review goes back to the Founding. In 1803, in Marbury v. Madison, the Supreme Court explained that “a Law repugnant to the Constitution is void” and famously declared, “It is emphatically the duty of the Judicial Department to say what the law is.”
The Court also curtailed the President’s powers in 1952 in the Youngstown Sheet & Tube Company v. Sawyer case, with Justice Robert Jackson’s concurrence offering a poignant reminder of the concerns that accompany an unchecked president: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”
The statements from Vance and his allies may be political posturing. Vance did not, after all, outright call for a refusal to follow court orders. But the implications of his posts are concerning enough that they demand a strong rebuke—especially from Republicans. Pro-democracy Republicans must emphasize to the Trump administration that it’s still bound by the law. The people should call their representatives to remind them of their fidelity to the Constitution. By all means, the executive branch should appeal decisions with which it disagrees. But if it continues to lose, the administration must comply with those rulings.
As Alexander Hamilton wrote in Federalist 78, the executive has the power of the sword, and Congress has the power of the purse, but “the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
If the Trump administration refuses to comply with a court order, the court could hold it in contempt. Would it try to fine or even jail those who fail to carry out its directives? Those options, though necessary, would further the constitutional crisis.
The American experiment—declaring independence from the king and creating a government with co-equal branches that balance and check each other—will not work if the executive branch ignores judicial mandates. Refusing to comply is itself lawlessness.
