The coming clash between the federal judiciary and the Trump regime

With organizations like Democracy Forward and Public Citizen winning court-ordered pauses in the various unlawful actions taken by Trump Cabinet officials kowtowing to Elon Musk's unlawful DOGE (which I urge everyone to call FIDO or DOGGY), we are quickly headed toward an unprecedented clash between two branches of the federal government.

For many Americans today, the idea of a government refusing to obey a federal court order or judgment summons up the image of federal troops in Alabama, enforcing the school integration required by Brown v. Board of Education. That clash pitted the state of Alabama against the federal judiciary. President Eisenhower, as chief executive of the federal government sent the U.S. army to Alabama to enforce the Supreme Court's ruling and related federal judicial orders. We now face a different configuration. Trump is not going to order enforcement of federal court orders in cases he or his Cabinet officials have lost.

Federal courts can, after appropriate proceedings, hold Trump officials in contempt of court for refusing to comply with orders to pause or halt completely unlawful actions. Ultimately, the courts can issue judgments for fines or imprisonment. But judges rely on law enforcement - or in extreme cases, like the situation in Alabama after Brown, military force - to implement these judgments. Which police force enforces which courts' judgments is complicated, both by the fact that there are multiple police forces within jurisdictions (e.g. in a state there are state level police forces such as state troopers and county police forces such as those under the leadership of a sheriff) and multiple jurisdictions (e.g. the various states and the federal government). In Washington, D.C., where many of the Trump regime's unlawful activities have taken place so far, there are particularly numerous police forces: including the local D.C. police (Metropolitan Police Department or MPD), the U.S. Secret Service, the U.S. Park Police, the FBI, the ATF, the Department of Homeland Security, and the U.S. Marshals Service. Most of these are explicitly controlled by the executive branch of the federal government. Although MPD is in the first place controlled by the District, the District is ultimately controlled by the U.S. Congress - today dominated by the Republican Fascist party, loyal to the Trump regime. None of these law enforcement agencies can be counted on to make sure Cabinet departments comply with court orders issuing from suits the Trump executive branch has lost.

Some recent lawsuits seeking to stop unlawful activity by Trump and his officials have been filed outside of the District. For example, suits protecting birthright citizenship have been brought in federal court in Washington state and Massachusetts. If the plaintiffs win these cases, enforcement by state police might be authorized - it depends on preexisting agreements between federal and state law enforcement agencies operating in the relevant state. Blue state governors and attorneys general should, and may well be, preparing to exercise law enforcement authority on behalf of federal courts - though this raises the specter of red states using their police departments to do likewise with Trump-friendly judicial rulings.

Wholly apart from the Roberts Court's general sympathy to the Trump regime, the prospect of the federal executive branch refusing to comply with and then refusing to enforce federal court orders and judgements is likely to incline the Supreme Court to overturn and limit judgments against Trump officials and their actions. The Court will be loathe to have the country see how ineffectual federal law really is when the federal executive is helmed and staffed by criminals and those enacting a constitutional coup.

So far, I have not seen suits filed against the Trump regime in state courts. This is because most of the unlawful activities taken so far violate federal law or the federal constitution. In the future, as the Trump regime's acts ripple out to field offices in the states, there may be pure state law claims brought and adjudicated by state courts. If plaintiffs win such cases, and Trump official refuse to accept and comply with the results, we can expect straightforward efforts by state law enforcement to implement judicial judgements and orders. Whether state police can successfully arrest Trump regime staffers or, if fines are in play, seize their assets remains to be seen.

None of this is to say that lawsuits ought not to be filed nor that courts ought not issue orders and judgments to enforce their rulings. As I have said, there may be state police forces in a position to implement the law against the federal executive. It is certainly worth exposing the Trump regime's thorough-going lawlessness. There is another possible result of litigating the Trump regime's unlawful conduct.

If we repeatedly see, as I think likely, the practical limits of operationalizing judgments against Trump and his staff, more people will begin to appreciate how the Trump regime threatens to precipitate a hot civil war. At the end of the day, a wholly rogue federal government cannot be brought to heel by the judiciary. Maybe nonviolent protest, resistance, and opposition can constrain such a government. If, though, that rogue government is hellbent on pursuing its aims and activities, forceful and violent opposition will become necessary and, perhaps, likely. Please note, I'm not advocating for that. I don't hope for it. I have described the dynamic that could well lead to it to make clear how vulnerable our country now is to conflict that cannot be resolved through politics or law.