I’m not sure if it matters if it is on the state or federal level. Does it, or is the outcome the same?
Lets say a judge say the governor or president has to do X or stop doing Y. The governor or president says ‘fuck you’ and keeps doing it.
What happens? Assuming the executive branch has dug their heels in, and refuses to budge.
Didn’t this happen with desegregation? The national guard was called in to enforce the judiciary on the federal level, but only after being used to block the judiciary on the state level? But what if the executive refusing to obey court orders is on the federal level? Then what happens? You can’t call in the national guard for that.
Do the police or military obey the judiciary or executive branch? I’d assume the executive branch, but what about court martials and MPs, do they take orders from civilian judiciary? If civilian judiciary says ‘do XYZ’ and the executive branch says ‘do the opposite’, what do MPs do? Do they follow the executive branch or judiciary?
That’s one of the big “what ifs” in our system. The judicial branch has no armed forces to enforce its decrees and relies on the executive branch to do so.
The Marshals have the power to arrest and detain fugitives. Presumably this could be employed against a governor disobeying a direct court order. Since it’s part of the DoJ, they might not be able to go after the President.
But UltraVires is correct that lots of what if scenarios have never been tested and are not spelled out completely in law.
There was the 1832 Supreme Court decision in Worcester vs Georgia where the Supreme Court ruled Georgia seizing Indian lands for gold violated Federal law. Andrew Jackson reputedly said Chief Justice Marshall has made his decision, now let him enforce it. In any case neither Georgia or the Jackson administration enforced the decision.
Ultimately the main recourse is impeachment. Andrew Johnson and Bill Clinton survived Senate trials’ Nixon resigned as few senators would support him. I believe Jackson received a Senate censure for his actions with the U S Bank; in Arthur Schlesinger’s 500 page book that censure gets one paragraph
Andrew Jackson once reportedly said, “John Marshall has made his decision; now let him enforce it!” in expressing his displeasure at a Supreme Court ruling. The veracity of the quote is disputed, but the case emphasized the inability of the court to enforce its edicts, particularly since the federal government was not a party to the suit.
An example that it was used in (also the only criminal trial in, USSC history) US v Shipp..
In short, they send the enforcement bodies to arrest the official responsible for the obstruction in his personal capacity. That usually is enough to change their minds.
Since we’re already hypothetically dealing with non-compliance with law at the highest levels, any further specific what-if procedures and sanctions in the law would be interesting as academic matters, but probably won’t be the ultimate determiner of which facts eventually rule the ground.
Assuming enough of the law holds together long enough. Which it almost certainly will.
But it is worth reminding ourselves from time to time that these laws, precedents, and traditions that we often think of as immutable facts of physics are mere social convention. Which will survive only as long as most of us agree to abide by them most of the time.
I’m not trying to be alarmist or say the Trumpees will overturn the Republic after Clinton wins by a large margin. Far from it. I’m just reminding that it’s a category error to assume the umpires will always control the game and that it’s physically impossible for the fans to storm the field.
A law abiding president or governor will obey the court. A president or governor who is accustomed to not obeying the law might just ignore the court as Jackson is reputed to have done. The list of functions of the marshals seemed to be only to protect the court and didn’t say anything about enforcing their orders. In any case, they are not about to take the president into custody.
A President or a Governor is not omnipotent. They have to act through subordinates.
Say, Lionel Mandrake is being held by Jack D Ripper, Warden of Laputa prison on orders of President Merkin Muffley, on suspicion of fluoridation. The Supreme Court orders his release. President Muffley refuses and directs Warden Ripper not to release Mandrake.
The Supreme Court will issue Contemp Notices to the President. They will also issue such notices to the Attorney General, Director of Prisons and the Warden himself ordering them to release Mandrake on threat of prison for all of them. These will be to them in their personal capacity, in other words they will be locked up.
The President or AG might be strong enough politically to get away with it. The Director probably not and the Warden; certainly not. So the chances are that the Warden will either release Mandrake of his own accord and use the Court order as an excuse. He has no desire to go to prison for President Muffley.
In the case of the Little Rock Nine the national Guard was called in by the governor to support segregation in defiance of the judiciary. It was federal troops that were sent to support the ruling.
If the issue is simply at the Federal level but the Governor supported the judiciary the National Guard most certainly could be called in. The Governor has that power. In fact the National Guard is less constrained when called to duty by the Governor. For the President to call them up means mobilizing them into federal forces, with Posse Commitatus limitations in place on the use of federal troops. The post 9-11 airport security is a good example of carefully walking the legal line. The federal government didn’t mobilize Guard troops for that mission. They coordinated with states and offered them money for pay and expenses. The states then called up troops on state active duty to perform the mission that federal troops legally could not have. Obviously that requires agreement between the federal and state level executives (along with Congress if they are allocating additional funding.)
They obey the lawful orders of the President by oath as uniformed service members. For Guardsmen, the oath includes the lawful orders of the Governor.
That lawful word is pretty big. The judiciary saying something isn’t lawful is a pretty good argument to disobey an order directing it. The legislature also has a say in what’s lawful. MPs, courts-martial, and Commanders enforce the UCMJ (or various state codes for Guard troops on state duty) as enacted by the appropriate legislative body (Congress or state legislature). Posse Commitatus (or state limits for NG on state active duty) provide constraints on the powers of troops for a lot of the issues that civilian courts would be involved in. Both the judicial and legislative branches get a say on what’s lawful.
A more recent example is County Clerk Kim Davis of Kentucky, who refused to issue marriage licenses to GLBT couples even after the US Supreme Court required that. She was eventually put in jail for 5 days, but was then released when her deputies issued the licenses. Kentucky legislature later changed the form so that the clerks’ name is no longer on the form.
(Her county was charged $233,058 for the plaintiffs cost in suing her, and the state paid out $1.1 million in costs (plus $260,000 to their own hired law firm).)
That is the way it seems to have worked since Marbury v. Madison, but the Constitution does not demand that. If the three branches of government are really co-equal, then why should the judicial branch have the final authority over “what the law is.” Because they themselves declared it to be so in Marbury?
Imagine a hypothetical court fifty or a hundred years from now declaring that some minority group should be herded into concentration camps. Should the President obey that decree?
Even a hypothetical court can’t declare this. All they could do would be to say that a law established by some legislature is legal. If the world comes to that, as it did in 1944, everybody would accept it. A President who didn’t would be more likely to be impeached than supported as a civil rights champion.
That’s the important thing to remember. The Supreme Court has virtually no original powers. All it can do is state the legality of other peoples’ actions.
But if the three branches of government refuse to accept the lawful actions of the others, then we no longer have a functioning country. At that point niceties of law and precedent don’t mean anything anyway.
I disagree. The Court can declare that the other actions are unlawful. It really doesn’t need a good reason for it other than one that satisfies itself. Not to restart the same sex marriage debate, but we’ve seen that it can ignore thousands of years of precedent on a “new understanding.” I am sure you agree with that step, but what happens when you don’t agree with that step, or when President Donald Trump IV packs the Supreme Court with Justices who decide that, say, all illegal immigrants should be gassed to death no matter what the people say?
I tend to agree, but why does one branch get the final word just because it says it gets the final word? If our future Supreme Court says that the law declares that illegal immigrants must be killed, and our future President disagrees and says that is NOT what the law says, why does one branch get the veto power? Just because our Supreme Court has usually done “good” (eliminating segregation, giving more rights to women) and have arguably done good (gay marriage, abortion), why do we assume that it always will?
The Court can rule that a lower court’s decision was right or wrong, and if wrong define what right is. (There are a very few matters in which they can hear a case directly.) Either way, it cannot initiate a ruling on its own. I really can’t tell what you’re saying, but it sounds like you are not understanding this.
Because that’s the way the country works. We may get to a new equilibrium but if so there is no pathway in law to predict the route or the outcome. It’s like all those questions that are equivalent to: if you throw out science what is the science answer to this hypothetical? There isn’t one. Once you throw out all the rules you no longer get to make any meaningful statements.