Trump’s clash with the courts raises prospect of showdown over
separation of powers
[May 19, 2025]
By NICHOLAS RICCARDI
DENVER (AP) — Tucked deep in the thousand-plus pages of the
multitrillion-dollar budget bill making its way through the
Republican-controlled U.S. House is a paragraph curtailing a court’s
greatest tool for forcing the government to obey its rulings: the power
to enforce contempt findings.
It’s unclear whether the bill can pass the House in its current form —
it failed in a committee vote Friday — whether the U.S. Senate would
preserve the contempt provision or whether courts would uphold it. But
the fact that GOP lawmakers are including it shows how much those in
power in the nation's capital are thinking about the consequences of
defying judges as the battle between the Trump administration and the
courts escalates.
Republican President Donald Trump raised the stakes again Friday when he
attacked the U.S. Supreme Court for its ruling barring his
administration from quickly resuming deportations under an 18th-century
wartime law: “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF
OUR COUNTRY!” Trump posted on his social media network, Truth Social.
Trump vs. the district courts
The most intense skirmishes have come in the lower courts.
One federal judge has found that members of the administration may be
liable for contempt after ignoring his order to turn around planes
deporting people under the Alien Enemies Act of 1798. Trump's
administration has scoffed at another judge’s ruling that it
“facilitate” the return of a man wrongly deported to El Salvador, even
though the Supreme Court upheld that decision.
In other cases, the administration has removed immigrants against court
orders or had judges find that the administration is not complying with
their directives. Dan Bongino, now Trump's deputy director of the FBI,
called on the president to “ignore” a judge’s order in one of Bongino's
final appearances on his talk radio show in February.
“Who’s going to arrest him? The marshals?” Bongino asked, naming the
agency that enforces federal judges’ criminal contempt orders. “You guys
know who the U.S. Marshals work for? Department of Justice.”
Administration walking ‘close to the line’
The rhetoric obscures the fact that the administration has complied with
the vast majority of court rulings against it, many of them related to
Trump's executive orders. Trump has said multiple times he will comply
with orders, even as he attacks by name judges who rule against him.
While skirmishes over whether the federal government is complying with
court orders are not unusual, it's the intensity of the Trump
administration's pushback that is, legal experts say.
“It seems to me they are walking as close to the line as they can, and
even stepping over it, in an effort to see how much they can get away
with,” said Steve Vladeck, a Georgetown law professor. “It’s what you
would expect from a very clever and mischievous child.”
Mike Davis, whose Article III Project pushes for pro-Trump judicial
appointments, predicted that Trump will prevail over what he sees as
hostile judges.
“The more they do this, the more it's going to anger the American
people, and the chief justice is going to follow the politics on this
like he always does,” Davis said.
The clash was the subtext of an unusual Supreme Court session Thursday,
the day before the ruling that angered the president. His administration
was seeking to stop lower courts from issuing nationwide injunctions
barring its initiatives. Previous administrations have also chafed
against national orders, and multiple Supreme Court justices have
expressed concern that they are overused.
Still, at one point, Justice Amy Coney Barrett pressed Solicitor General
D. John Sauer over his assertion that the administration would not
necessarily obey a ruling from an appeals court.
“Really?” asked Barrett, who was nominated to the court by Trump.
Sauer contended that was standard Department of Justice policy and he
assured the nation’s highest court the administration would honor its
rulings.
‘He's NOT coming back’
Some justices have expressed alarm about whether the administration
respects the rule of law.
Justices Sonia Sotomayor and Ketanji Brown-Jackson, both nominated by
Democratic presidents, have warned about government disobedience of
court orders and threats toward judges. Chief Justice John Roberts,
nominated by a Republican president, George W. Bush, issued a statement
condemning Trump's push to impeach James E. Boasberg, the federal judge
who found probable cause that the administration committed contempt by
ignoring his order on deportations.
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President Donald Trump, left, greets justices of the Supreme Court,
from left, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett,
before addressing a joint session of Congress at the Capitol in
Washington, March 4, 2025. (AP Photo/J. Scott Applewhite, File)
Even after the Supreme Court upheld a Maryland judge’s ruling
directing the administration to “facilitate” the return of Kilmar
Abrego Garcia, the White House account on X said in a post: “he's
NOT coming back.”
Legal experts said the Abrego Garcia case may be heading toward
contempt.
U.S. District Court Judge Paula Xinis has complained of “bad faith”
from the administration as she orders reports on what, if anything,
it’s doing to comply with her order. But contempt processes are slow
and deliberative, and, when the government’s involved, there’s
usually a resolution before penalties kick in.
What is contempt of court?
Courts can hold parties to civil litigation or criminal cases in
contempt for disobeying their orders. The penalty can take the form
of fines or other civil punishments, or even prosecution and jail
time, if pursued criminally.
The provision in the Republican budget bill would prohibit courts
from enforcing contempt citations for violations of injunctions or
temporary restraining orders — the two main types of rulings used to
rein in the Trump administration — unless the plaintiffs have paid a
bond. That rarely happens when someone sues the government.
In an extensive review of contempt cases involving the government,
Yale law professor Nick Parrillo identified only 67 where someone
was ultimately found in contempt. That was out of more than 650
cases where contempt was considered against the government.
Appellate courts reliably overturned the penalties.
But the higher courts always left open the possibility that the next
contempt penalties could stick.
“The courts, for their part, don’t want to find out how far their
authority goes,” said David Noll, a Rutgers law professor, “and the
executive doesn’t really want to undermine the legal order because
the economy and their ability to just get stuff done depends on the
law.”
‘It’s truly uncharted territory'
Legal experts are gaming out whether judges could appoint
independent prosecutors or be forced to rely on Trump’s Department
of Justice. Then there’s the question of whether U.S. marshals would
arrest anyone convicted of the offense.
“If you get to the point of asking the marshals to arrest a
contemnor, it’s truly uncharted territory,” Noll said.
There’s a second form of contempt that could not be blocked by the
Department of Justice –- civil contempt, leading to fines. This may
be a more potent tool for judges because it doesn’t rely on federal
prosecution and cannot be expunged with a presidential pardon, said
Justin Levitt, a department official in the Obama administration who
also advised Democratic President Joe Biden.
“Should the courts want, they have the tools to make individuals who
plan on defying the courts miserable,” Levitt said, noting that
lawyers representing the administration and those taking specific
actions to violate orders would be the most at risk.
There are other deterrents courts have outside of contempt.
Judges can stop treating the Justice Department like a trustworthy
agency, making it harder for the government to win cases. There were
indications in Friday's Supreme Court order that the majority didn't
trust the administration's handling of the deportations. And defying
courts is deeply unpopular: A recent Pew Research Center poll found
that about 8 in 10 Americans say that if a federal court rules a
Trump administration action is illegal, the government has to follow
the court’s decision and stop its action.
That's part of the reason the broader picture might not be as
dramatic as the fights over a few of the immigration cases, said
Vladeck, the Georgetown professor.
“In the majority of these cases, the courts are successfully
restraining the executive branch and the executive branch is abiding
by their rulings,” he said.
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