Will the Trump administration defy the courts?
JD Vance’s tweet last weekend that “judges aren’t allowed to control the executive’s legitimate power” has sparked widespread concern that the Trump administration might become the first in US history to do so. At least at this stage, it is not clear that it will come to that, notwithstanding the president’s proclivity for asserting limitless executive power. But as other countries’ experiences show, if he were to adopt the position of the US vice-president, Trump would be crossing perhaps the most fundamental line demarcating constitutional democracy from autocracy.
Consider just a few examples. In Venezuela, Hugo Chávez spent years undermining the country’s supreme court, declaring that it lacked “legitimate and moral authority”. The former president later refused to comply with a 2003 order to demilitarize the Caracas police force, instead tightening military control over law enforcement to entrench his power. In Hungary, after failing to enforce rulings of the constitutional court, Viktor Orbán’s government openly defied the European Union’s highest court’s ruling finding Hungary’s restrictive asylum scheme in violation of EU law. Likewise, in Turkey, Recep Tayyip Erdoğan systematically ignored domestic and European court of human rights rulings that ordered the government to release journalists and other political activists critical of his government.
Nothing is more challenging to an authoritarian than an independent judiciary ready to hold the leader accountable. When would-be authoritarians perceive judicial oversight as a threat, they respond by dismissing and defying court rulings or otherwise undermining judicial independence. By the time the authoritarian takeover is complete, the judiciary is rendered toothless. Courts are especially vulnerable to such moves because they do not have their own enforcement arms.
To be sure, we are not there yet. But Vance seems to see these examples not as object lessons in what not to do, but as models for the US president to follow. In 2021, Vance said his “one piece of advice” to Trump for a second term would be to “fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people … And when the courts – because you will get taken to court – and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’” (It is disputed whether Jackson even said this, but in any event he never defied the court.)
In Trump’s last term, he had a worse won-lost record in the supreme court than any president since Franklin Delano Roosevelt – yet he abided by all court orders. And in the wake of concern about Vance’ s comments, Trump said he always obeys courts, but will pursue appeals. Thus far, that seems to be the case. But no responsible government official – much less the No 2 official in the executive branch – should even suggest that defying the courts is appropriate.
Trump’s right-hand man, Elon Musk, is also fanning the flames. On 8 February, hours after a federal judge in New York temporarily blocked Musk’s team from accessing sensitive personal information held by the Department of the Treasury on millions of Americans, Musk shared a tweet from another user 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.” The next day, Musk posted: “A corrupt judge protecting corruption. He needs to be impeached NOW!”
On 12 February, Musk tweeted: “Bravo!” in response to a claim by El Salvador’s autocratic president, Nayib Bukele, that he had impeached judges in 2021 “and then proceeded to fix the country”. Musk added: “We must impeach judges who are grossly undermining the will of the people and destroying America. It is the only way.” Bukele’s removal of five constitutional court judges in 2021 is widely regarded as a “technical coup” that paved the way for him to seek re-election in violation of constitutional term limits. Musk is no lawyer, but he should know that in the US, impeachment is reserved for “high crimes and misdemeanors”, not decisions Musk does not like.
Government officials are of course free to criticize court decisions. But Vance’s and Musk’s comments echo those of authoritarian regimes around the world, which often seek to undermine the legitimacy of any institution that might constrain their actions – the courts, the press, the non-profit sector. The criticism is often the first step in a campaign to sweep away all constraints.
The federal courts in the US system are given independence and final say on legal disputes so that they can act as a check on the political branches. In 1975, the supreme court explained that “all orders and judgments of courts must be complied with promptly.” Indeed, the chief justice, John Roberts, in his annual end-of-year report on the federal judiciary in 2024, identified “threats to defy lawfully entered judgments” as one of the core issues that “threaten the independence of judges on which the rule of law depends”.
The moment of truth may come soon. More than 60 lawsuits have been filed challenging Trump’s initial measures – from seeking to revoke birthright citizenship to freezing federal funding. Nearly every court to rule thus far has ruled against the administration.
Were the Trump administration to follow Vance’s and Musk’s advice and defy the supreme court, the fallout would be swift, widespread – and justified. The supreme court has limited formal resources to compel the president to follow its dictates, because the president, not the courts, oversees federal law enforcement. Despite that formal reality, defiance would be an impeachable offense – and if the Republican party stood behind the president at that point, it would pay greatly at the polls. That’s because few principles are as fundamental to the American system as the notion that the supreme court has final say on constitutional and statutory issues and its orders must be obeyed. Trump would cross that line at his own, his party’s, and the country’s peril.
