Suppose a judge issues an injunction that you believe to be clearly invalid and outside of his authority. Can you ignore/violate it while waiting for it to be overturned, or do you have to comply in the meantime. Meaning, when it does eventually get overruled, are you then in the clear as to having violated it, or are you still in trouble for having violated it without getting official clearance from an appeals court?
The only case I an remember which is relevant is the Elian Gonzalez case. I remember distinctly that Janet Reno was very forceful in saying WRT some court ruling that it was a mistake by the judge which would be overturned. (IIRC, the specific issue was that a family court has issued a ruling; Reno (and other legal people) asserted that family courts had no jurisdiction in immigration/asylum type cases.) But I don’t remember whether she violated it in the interim.
[I’m imagining some outrageous overreach by a judge ordering the president to do X, Y, & Z - or something of the sort - and wondering how it would play out.]
Orders of the Court must be followed while they are in force … otherwise one would be in contempt of court and that can be treated as a crime … although for more minor affairs there may be an administrative procedure …
In the case of such outrageous orders … one can quickly appeal and get a Temporary Restraining Order … then and only then can one ignore the first order … and then only until the matter is properly heard by whichever court has authority …
Like, for example, suppose a judge rules that the election was rigged and issues a mandatory injunction ordering the president to resign his office within 15 minutes of this ruling …
The appeals court would be all over this like stink on shit … the more legally wise may be better to comment on the time factor … but typically there’s a time allowance for this appeals process … whether that’s under written law or just court precedence … I’d like to say 30 days as that is what is given on all the Court Orders I’ve been served …
ETA: The key here is who exactly has the authority to determine is an injunction is invalid … and neither the President nor Congress has that authority … only a higher level court does … and yes that means the rulings of SCOTUS are final … except that 2/3’s of Congress and 3/4’s the States overrule …
Again, we’re contemplating “outrageous orders”, so I don’t know how relevant it is to state what’s “typically” done. I’m hypothesizing an extreme case here to get at the technical/legal angle.
I understand that. However, an Order is an Order. If the court in question has the right to issue Orders then it’s best to obey then while looking for the TRO. In the case of an outrageous order it shouldn’t take long.
Yes, in theory a conspiracy of judges could do almost anything. Provided they’re all in on it up to the SCOTUS then an outrageous order could stand and be enforced. But at that point civil order has broken down and we need to rebuild society with flaming guitars and muscle cars and such.
Ummm … actually what’s typically done is very very powerful in a court of law … it’s called legal precedence … judges endeavor to rule exactly the same way in cases that are exactly the same …
Your question is whether we can ignore a court order … and that’s never allowed … at a minimum one must file an appeal … and with that filing get a TRO, sometimes automatically …
Where the court “clearly does not have the right”, it won’t issue an order. Unless the court is corrupt.
So the scenario only becomes interesting when A) the right is arguable or B) the court is corrupt.
As to A) we have a system for settling these sorts of arguments: it’s called a higher or more general court. Meantime the status quo ante or last ruling stands, whichever is fresher.
As to B) once parties cease following the rules it becomes increasingly useless to discuss what the rules are. Which applies equally to corrupt courts as it does to folks choosing, for reasons fair or foul, to ignore injunctions, TROs, etc.
So in essence you’re asking something close to: If side A cheats a bit, at least as viewed by side B, how much do the rules provide for side B to cheat to get even? The answer of course is the rules don’t allow it at all, but once side B is of a mind to cheat, that’s hardly an obstacle.
Bottom line: Once rules are ignored there is exactly one rule: might makes right. More precisely: Might IS right. By definition of the only definition which matters.
I agree with LSLGuy. If the OP’s purpose is to hypothesize a scenario where the executive branch may ignore a judicial order, he’s going to have to come up with a scenario so extreme that rule of law no longer applies. If the OP is trying to draw an analogy to the current situation playing out in the 9th circuit with respect to Trump’s EO, the analogy fails because there’s a huge get gap between his scenario and what’s happening here.
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It’s not out of the realm of possibility that you’re right and Wiki is wrong. But until you have some source for that claim I’m going to assume that that’s not the case.
If it makes an honest error the higher / wider court will correct it. That’s built into the rules. Per my side A).
If rather than making an honest error it proceeds from an illicit desire to expand its power, well that’s corrupt. “Corrupt” means more than simply “Will rule for bribes.” Per my side B).
You persist in the direction of “What if the person / agency / organization subject to the Court’s decision really doesn’t like it? How much do the rules permit them to ignore it?”
And I persist in my answer: “The rules don’t”.
Practical reality says that when very severe push comes to very severe shove, rules will get bent and something, anything will happen. An irresistible force will never meet an immovable object.
The British unwritten constitution works as long as nobody pushes too hard on it with the intent to bend or break it. The US written constitution is built of stiffer but not really much stronger stuff. It *is *breakable. It too ultimately depends on nobody pushing too hard on it.
If indeed we get enough people pushing hard enough in enough directions, it will break. One hopes we don’t end up in a game of constitutional chicken over the next few years. After all, it’s the only thing standing between the last two centuries’ reality and something somewhere on the spectrum from total chaos to totalitarianism.
I like Wiki as much as the next guy, but you can’t settle legal questions by pointing out that Wiki “doesn’t make any reference to …” whatever, especially if it’s unusual aspect.
But my question is before that has happened.
OK, so that’s your answer. Fine. (Are you an expert, BTW?)
My expertise, such little as it is, is being married to a former low-level judge and current practicing lawyer for 30 years. So we’ve talked about all these kinds of things before. As well I’ve been reading her various trade press magazines for 30 years now. I’m also a fierce reader on a goodly array of topics that attract my curiosity. I also don’t work very much so I have far more free time than most people. Time to read and think and …
Beyond that though, I got nuthin.
As to issues of timing, the rules are clear. The last thing a judge said carries the day, period. Until a different bigger judge says otherwise. If somebody doesn’t like the first ruling, they still get to live with it until they can persuade the bigger judge to do different.
TROs and such are the built-in mechanism to jump to the head of the queue for time-critical matters. Even so, that’s time-critical on the scale of a few days, not a few minutes. Which can feel like an eternity to people addicted to twitter “news”.
I’m going to speculate that you’re concerned with the idea that checks and balances don’t seem to apply here and that somehow the Judiciary is “first amongst equals” of the three branches. If so you’re hardly the first person to ask that question. I’m far from the best person to put forth a comprehensively cited explanation, but I’ll give it a high level whirl until that person shows up.
The answer is fairly well established. Each branch is “first amongst equals” in different areas. Congress does *this *and the others must go along. The Executive does *that *and the others must go along. The Judiciary does the other thing and the others must go along.
Unlike the others, the Judiciary has no power of initiative. They can’t rule on anything not brought to them. They can’t rule beyond the question asked, even if their answer opens a vast array of new questions.
Yes, to some degree they are the referees, which gives them a different kind of power than the two contending teams. But in other ways they’re more limited; they can’t take a snap nor intercept a pass.
The tri-fold symmetry isn’t perfect. But neither is it absent.
I was just pointing out that wikilink says LSLGuy is right … not wrong …
Right … the factual answer is that we must follow the Court Order in the meantime … only a higher court can rule an Order as invalid … we, ourselves, do not have that authority …
