What happens if a president and the federal government fail to follow a judge's orders?

WASHINGTON — The Trump administration has been accused of ignoring or flat-out defying recent federal court orders, including a Supreme Court decision that it must “facilitate” the release of a Maryland man who was sent in error to a Salvadoran prison.  

The federal judge presiding over Kilmar Abrego Garcia's case Tuesday chastised the administration for its inaction.

“I’ve gotten nothing,” said Judge Paula Xinis of the U.S. District Court for Maryland. “I’ve gotten no real response and no real legal justification for not answering.”

If Xinis or another federal judge decides that President Donald Trump and federal officials have failed to comply with their orders, what action can they take to enforce them?

Kilmar Abrego Garcia. CASA via AP

One way is a process known as civil contempt. That involves a judge issuing an order holding either the government writ large or an officer of the government in contempt. The judge could impose daily fines or even order someone jailed until the contempt is “purged,” which would happen when the offending party does what the judge wants.

Criminal contempt requires charges by the Justice Department, which the president oversees, so it is a less viable option. A president can also revoke criminal contempt by issuing a pardon. Civil contempt, though, is not pardonable.

Judges are generally reluctant to hold U.S. government litigants in contempt, but they have done so. During the Obama administration, a judge held the Interior Department in contempt for imposing a moratorium in 2011 on offshore oil drilling after the Deepwater Horizon disaster.

In the 1990s and the early 2000s, both Clinton and Bush administration officials were held in contempt during litigation over the federal government’s mismanagement of funds held in trust for Native Americans.

Neither of those cases involved threats of jail — only fines levied against the U.S. government.

Under long-standing precedent, the president cannot be held in contempt because the president is not bound by court injunctions against the federal government.

Is jail an option?

What if a judge decided that jailing an officer of the government would be the only way to enforce a court order?

The option is complicated by the fact that federal contempt orders are enforced by U.S. marshals. The marshals are part of the executive branch, not the judicial branch, but their mission is to both "enforce federal laws and provide support to virtually all elements of the federal justice system."

The president, who oversees the marshals, could order them not to enforce a contempt order against an executive branch official — although that would violate the law.

“For the president to call off the marshals would flagrantly violate the statute charging the marshals to carry out court orders, as well as a norm unbroken since the 1800s that presidents do not defy federal court orders,” wrote Nicholas Parillo, a professor at Yale Law School who reviewed data on thousands of court filings in an extensive 2018 article on contempt.

David Noll, a professor at Rutgers Law School, noted in a recent Democracy Docket article that federal rules appear to allow judges, if needed, to bypass the marshals and hire other parties to enforce their contempt rulings.

The federal rules of civil procedure, Noll added, specify how certain types of “process” — the legal term for orders that command someone to appear in court — are to be served. The rule states that, as a general matter, process “must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”

“To be sure, a court that appointed someone other than the marshals to enforce a civil contempt order would be breaking new ground,” Noll wrote.

“Because of the marshals’ long and honorable history of respecting their legal obligation to enforce federal courts orders, the courts have rarely, if ever, had to turn to other parties to have their orders enforced," he said.

Local police and sheriffs could do the job, he added, and "unlike the marshals, these individuals would be responsible to the court alone.”

The Supreme Court factor

Another question is what appeals courts, and ultimately the Supreme Court, would do with a contempt ruling against the Trump administration.

Parillo’s research found that while district court judges are willing to issue contempt findings, sanctions are rarely upheld on appeal.

“There are no opinions of the Supreme Court on the subject," he wrote. "When the courts of appeals hear a potentially relevant case, they usually dispose of it on narrow, case-specific grounds in a deliberate attempt to avoid the bigger and more portentous issues about whether and when judges can use contempt sanctions against the federal government."

In a 1911 ruling, in Gompers v. Buck’s Stove & Range Co., the Supreme Court described the need for courts to be able to enforce their orders through contempt but do so sparingly.

“The power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law,” the opinion says. “Without it, they are mere boards of arbitration, whose judgments and decrees would only be advisory."

The justices warned that without the power of contempt, the authority of the court would be derided.

"If a party can make himself a judge of the validity of orders which have been issued, and by his own disobedience set them aside," the opinion warns, "then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United States’ would be a mere mockery.”