# What happens if the executive branch refuses to obey orders from the judicial branch **URL:** \ **Category:** Factual Questions\ **Created:** [October 15, 2016, 3:33pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603 "2016-10-15T15:33:11Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 16, 2016, 9:01pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/21 "2016-10-16T21:01:27Z")
Remember Nixon’s Saturday Night Massacre? IIRC he went through the attorney general and deputy, before he found someone (Robert Bork) who would rather fire the special prosecutor than resign. The thing is, most of these “obey or be arrested” scenarios require a whole series of people, all the way down to the foot soldiers, to obey the person defying the courts. So many foreign governments have toppled (ie. Shah of Iran) when it was becoming evident that the foot soldiers could not be trusted to carry out orders to go against what they believed in. The recent coup attempt in turkey is a stark example of this. the simple rule in any confrontation is “don’t start a fight you can’t win” - unless your goal is to be a martyr. In the case of 1820’s Cherokees or 1950’s black people the powers that be were pretty sure they had a decent consensus for defying the court by the white majority. very few other such divisions in modern society will be so clear-cut, that the law enforcement, national guard and the military will come down on the side of defiance against the constitution. If the issue is particularly divisive, it may come down to civil war as it did in 1860. If I were the one sitting in the white house, I think I’d want to be sure the full military would stand with me before I defied the constitution. I have my doubts they would. Even Nixon only postponed the inevitable. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 16, 2016, 10:09pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/22 "2016-10-16T22:09:27Z")
> [@UltraVires](#): > > 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. > > Lincoln defied the Supreme Court and got away with it. [Ex parte Merryman - Wikipedia](https://en.wikipedia.org/wiki/Ex_parte_Merryman) This is incorrect. While the Chief Justice did issue a decision, it was not a Supreme Court decision. The issue was never taken to the Supreme Court–Congress passed a law making it moot. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 16, 2016, 10:33pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/23 "2016-10-16T22:33:13Z")
> [@Exapno\_Mapcase](#): > > 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. I do understand this. Imagine a scenario where a person is asking for injunctive relief because the President has failed to enforce the immigration laws and that case makes the way to the Supreme Court. [QUOTE=Exapno Mapcase;19705641Because 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.[/QUOTE] So it is that way because it is that way? The concept of judicial review does not have to exist. In the UK, Parliament is Supreme. There is no intrinsic reason why the Supreme Court must have the absolute power to declare an act of Congress or a state legislature to be unconstitutional. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 16, 2016, 10:38pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/24 "2016-10-16T22:38:23Z")
> [@BigT](#): > > This is incorrect. While the Chief Justice did issue a decision, it was not a Supreme Court decision. The issue was never taken to the Supreme Court–Congress passed a law making it moot. As the Wikipedia article spells out in more detail, there is some dispute over the capacity that Taney was acting in when he issued the opinion. In any event, it was a lawfully issued opinion by a court with jurisdiction over the matter which Lincoln flatly ignored and refused to follow. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [October 16, 2016, 11:01pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/25 "2016-10-16T23:01:16Z")
> [@UltraVires](#): > > I do understand this. Imagine a scenario where a person is asking for injunctive relief because the President has failed to enforce the immigration laws and that case makes the way to the Supreme Court. In fact, the Supreme Court has a four-part test for injunctive relief: > [@](#): > > showings of irreparable injury, inadequacy of legal remedies, a balance of hardships tipping in favor of the party seeking the injunction and consideration of the public interest are all necessary before an injunction may issue. If the Supreme Court throws out its own procedures and definitions, in favor of “It really doesn’t need a good reason for it other than one that satisfies itself.” then a revolution has happened. That’s possible - but unlawful. So nothing about it can be assumed. > [@](#): > > In the UK, Parliament is Supreme. So what? The US is not the UK. > [@](#): > > There is no intrinsic reason why the Supreme Court must have the absolute power to declare an act of Congress or a state legislature to be unconstitutional. The only reason is 227 years of history. You can’t dismiss that without dismissing everything else. ---
**Author:** ![Fretful\_Porpentine](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fretful_porpentine/32/2873_2.png) [@Fretful\_Porpentine](https://boards.straightdope.com/u/Fretful_Porpentine)\ **Post date:** [January 29, 2017, 10:33pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/26 "2017-01-29T22:33:37Z")
[I fear we are about to find out.](https://www.washingtonian.com/2017/01/29/customs-and-border-protection-still-not-allowing-lawyers-to-see-detainees/) ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [January 29, 2017, 10:48pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/27 "2017-01-29T22:48:51Z")
> [@watchwolf49](#): > > Within four years, the voters will have their say in the matter … We hope. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 29, 2017, 11:17pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/28 "2017-01-29T23:17:36Z")
Marbury v. Madison was unprecedented because our founders were amateurs, and did an amateurish job at writing our Constitution. Somebody has to have the final word as to what the Constitution says, and the Constitution itself is silent on the question of who that is. As soon as it came up, we had a question for which the law had no answer, and so the Court did what someone always does when the law has no answer, and made something up. How could it be otherwise? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [January 29, 2017, 11:32pm UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/29 "2017-01-29T23:32:24Z")
> [@Chronos](#): > > Marbury v. Madison was unprecedented because our founders were amateurs, and did an amateurish job at writing our Constitution. It would be better to say they did a \*contemporary \*job of writing the Constitution. They looked at the world around them and incorporated those pieces which appeared to work combined with their experiences in small town and colonial governments. They were inventing something completely new. No Supreme Court at an equal level to the other two branches had ever existed in the form ours now does, so they hardly can be faulted for not envisioning that. The changing world kept overtaking their assumptions and constructions, true, but the basic framework was sound. Much more importantly, it was flexible enough to normally incorporate these great changes without much fuss. A truly amateurish job would have cracked at a hundred points. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [January 30, 2017, 1:14am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/30 "2017-01-30T01:14:45Z")
“What happens if the executive branch refuses to obey orders from the judicial branch” The short answer is that that if the executive does this successfully, the rule of law has come to an end, and democracy cannot survive in the country in question. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 30, 2017, 1:40am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/31 "2017-01-30T01:40:50Z")
The only amplification I’d give to what **UDS** said – which is essentially true – is that if the executive breaks the law in a big or significant fashion, then democracy could be imperiled. Nearly every President has pushed at the law a little. Ronald Reagan unilaterally broke treaties, violating the constitutional “supreme law” clause. Bush the younger lied to Congress, a violation of the law. But these are small enough potatoes that our democracy can survive it. (The matter of detainees at Guantanamo is troubling; that’s no longer small potatoes.) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 30, 2017, 3:45am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/32 "2017-01-30T03:45:09Z")
> [@UDS](#): > > “What happens if the executive branch refuses to obey orders from the judicial branch” > > The short answer is that that if the executive does this successfully, the rule of law has come to an end, and democracy cannot survive in the country in question. If the three branches of government are equal, why is one taking orders from another? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 30, 2017, 3:47am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/33 "2017-01-30T03:47:25Z")
It’s non-transitive. A \> B \> C \> A. Congress writes laws…and the President vetoes them. Congress overrides the veto…and the courts negate them. The Senate confirms the members of the court. Etc. They all give orders to each other. It’s wonderfully involute! ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [January 30, 2017, 4:29am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/34 "2017-01-30T04:29:57Z")
Trinopus has it. Each of the three branches has its particular function, which the others may not usurp. The legislature makes the law. The courts interpret the law. The executive executes the law. If the executive wants to do something and the courts rule that the law does not give it the necessary power, then the executive will have to get the law changed (by, or under the authority of, the legislature) before it can lawfully do whatever it is that it wants to do. The rule of law in a nutshell! ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [January 30, 2017, 5:15am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/35 "2017-01-30T05:15:45Z")
Depends on the law. If people are being arrested and jailed over a law the courts say is unconstitutional, then the executive branch is SOL, because the judicial system is the only branch that can send people to prison. Unless of course Trump sends people to Gitmo or internment camps or something. But unconstitutional laws are the easiest things for the judicial branch to block. But if it’s an executive action that doesn’t involve throwing people in jail, a President probably could defy it, as Jackson did, and get away with it unless impeached. In an extreme case, which has happened in Latin America from time to time, the Supreme Court may call on the military to arrest and depose the President. You see, the problem with a President defying the rule of law is that what’s good for the goose is good for the gander. The three branches are co-equal, and abandonment of rule of law by one can justify abandonment of rule of law by the other two in response, so long as the response is against the President and not against the public. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 30, 2017, 5:45am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/36 "2017-01-30T05:45:26Z")
> [@Trinopus](#): > > The only amplification I’d give to what **UDS** said – which is essentially true – is that if the executive breaks the law in a big or significant fashion, then democracy could be imperiled. > > Nearly every President has pushed at the law a little. Ronald Reagan unilaterally broke treaties, violating the constitutional “supreme law” clause. Bush the younger lied to Congress, a violation of the law. > > But these are small enough potatoes that our democracy can survive it. > > (The matter of detainees at Guantanamo is troubling; that’s no longer small potatoes.) Emphasis added. I would like to see a cite for that. Actually, 2 cites. One that it happened, and 1 that if it did it would be “a violation of the law”. [Actually, please don’t try and cite the first part. That’s GD territory.] ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [January 30, 2017, 6:50am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/37 "2017-01-30T06:50:35Z")
> [@Chronos](#): > > Somebody has to have the final word as to what the Constitution says, and the Constitution itself is silent on the question of who that is. Is it? “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [or] the Laws of the United States.” “X federal official is doing Y thing to me, and I think it is illegal, so please tell him to stop” is surely a case arising under the Constitution or laws of the United States, and deciding what the Constitution says is an integral part of deciding a case arising under it. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [January 30, 2017, 7:14am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/38 "2017-01-30T07:14:15Z")
> [@Jim\_s\_Son](#): > > 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 Stephen K Bannon claimed Trump’s Inaugural speech (which he wrote) was “Jacksonian.” [https://www.washingtonpost.com/local/2017/live-updates/politics/live-coverage-of-trumps-inauguration/bannon-calls-trumps-speech-jacksonian/?utm\_term=.409973156661](https://www.washingtonpost.com/local/2017/live-updates/politics/live-coverage-of-trumps-inauguration/bannon-calls-trumps-speech-jacksonian/?utm_term=.409973156661) > [@](#): > > “It was an unvarnished declaration of the basic principles of his populist and kind of nationalist movement. It was given, I think, in a very powerful way. I don’t think we’ve had a speech like that since Andrew Jackson came to the White House,” Bannon said in an interview with The Washington Post. “But you could see it was very Jacksonian. It’s got a deep, deep root of patriotism there.” Andrew Jackson actually had more experience than Trump. And his Inaugural speech sounds reasonable–even though his subsequent actions were not. [http://www.presidency.ucsb.edu/ws/?pid=25810](http://www.presidency.ucsb.edu/ws/?pid=25810) > [@](#): > > …In administering the laws of Congress I shall keep steadily in view the limitations as well as the extent of the Executive power, trusting thereby to discharge the functions of my office without transcending its authority. With foreign nations it will be my study to preserve peace and to cultivate friendship on fair and honorable terms, and in the adjustment of any differences that may exist or arise to exhibit the forbearance becoming a powerful nation rather than the sensibility belonging to a gallant people… > > It will be my sincere and constant desire to observe toward the Indian tribes within our limits a just and liberal policy, and to give that humane and considerate attention to their rights and their wants which is consistent with the habits of our Government and the feelings of our people. Yes, Jackson was a hotheaded duellist, a slavedriver–and he defied the Supreme Court to remove the tribes. Still, better than Trump. And he had a far better speechwriter… ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [January 30, 2017, 8:07am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/39 "2017-01-30T08:07:13Z")
> [@Lord\_Feldon](#): > > Is it? “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [or] the Laws of the United States.” > > “X federal official is doing Y thing to me, and I think it is illegal, so please tell him to stop” is surely a case arising under the Constitution or laws of the United States, and deciding what the Constitution says is an integral part of deciding a case arising under it. “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 30, 2017, 9:54am UTC](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603/40 "2017-01-30T09:54:32Z")
> [@Fretful\_Porpentine](#): > > [I fear we are about to find out.](https://www.washingtonian.com/2017/01/29/customs-and-border-protection-still-not-allowing-lawyers-to-see-detainees/) Nothing to “fear”. That’s small potatoes in the process, as it’s not uncommon for some back-and-forth to happen before folks settle on what the final course of action will be. It also might be just a handful of employees not fully familiar with their duties under a court order. We went thru a lot of this when SSM was decreed to be legal in the US and several counties tried to defy the order or stall. Surely you don’t think this is the first time a judge’s orders were not carried immediately, do you? [Previous page](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603.md?page=1) [Next page](https://boards.straightdope.com/t/what-happens-if-the-executive-branch-refuses-to-obey-orders-from-the-judicial-branch/768603.md?page=3)