What happens if the Federal Government not only ignores a court order but tries to block the United States Marshals Service (USMS) from enforcing it? The answer is clear: courts must not, and cannot, abandon their constitutional responsibilities in the face of such defiance.
There are, however, many encouraging signs that courts are prepared to enforce their authority should it be necessary to do so. In the past few months, federal courts have ordered the government to engage in expedited discovery (including to determine “whether contempt proceedings are warranted” in the case of Abrego Garcia), submit declarations and other materials to build factual records, file status reports on court-ordered compliance, and “be prepared” to provide testimony from certain officials. Courts have also had to consider motions to enforce court orders, “remind” Government counsel of attorneys’ responsibilities under Rule 11 and the duty of candor to the court, and, in a case in which the Government “demonstrate[d] a willful disregard” for a court order, concluded that “probable cause” existed for criminal contempt.
Courts have not yet confronted the “endgame” question, though we are sure they have it in mind: if the Administration unlawfully directs the USMS to stand down, and the Marshals comply, how can a court enforce its order?
Courts have several pathways to assert their authority, even in the face of executive defiance. Below, we explain why the Marshals must follow court orders, describe enforcement tools that do not rely on the USMS, explain how—if these other measures fail—a court could rely on non-USMS officials to enforce its orders, and underscore what a court should consider before taking that final, extraordinary step.
I. The USMS Cannot Lawfully Defy Federal Courts
The USMS occupies a unique position in the Executive Branch. Structurally, it is a “bureau within the Department of Justice under the authority and direction of the Attorney General.” But federal law makes the USMS dually accountable to the judicial branch, with its “primary role and mission . . . to provide for the security and to obey, execute, and enforce all orders” of the federal courts. The USMS’s governing statutes also require that it “execute all lawful writs, process, and orders issued under the authority of the United States” and “command all necessary assistance to execute its duties.”
When the President’s or the Attorney General’s directives conflict with the USMS’s statutory obligation to enforce court orders, the Constitution demands fidelity to the law. The Marshals’ oath—to “support and defend the Constitution of the United States”—cements this duty to the Constitution, not to the President or Attorney General. As Yale Law School Professor Nicholas Parrillo has observed: “For the President to call off the marshals would flagrantly violate the statute charging the marshals to carry out court orders.” In the face of any such directive to stand down, the USMS must execute all lawful orders—failure to do so would violate their oath to the Constitution and to their office.
II. Federal Courts Can Impose Sanctions Without USMS Enforcement
That the Executive might refuse to comply with a court order cannot be grounds for judicial inaction. Federal courts also possess sanction powers that do not rely on the Marshals. Among them:
- Courts may disqualify counsel. For example, Washington’s federal trial court, the District Court for the District of Columbia (DDC), recently held that, although disqualifying counsel is an “extraordinary” remedy, “a ‘clear violation of the District of Columbia Rules of Professional Conduct’ can merit disqualification.” Thus, an attorney may be disqualified when the attorney “clearly views compliance with court orders with which she does not agree as optional,” a stance “incompatible with our judicial system.” Federal courts likewise may disqualify DOJ attorneys, the Attorney General, or even the Department as a whole—just as they might do with any other lawyer or law firm. The United States Claims Court made exactly this point in a decision denying a motion to disqualify DOJ when it emphasized that it “cannot agree . . . that the Department of Justice cannot be removed from representing the United States,” because “under our constitutional system of government no branch of the government should be allowed the unfettered, unchecked ability to act arbitrarily, capriciously or outside the dictates of the law.” With that greater power against the entire Department presumably comes lesser powers as well.
- Courts may impose adverse litigation outcomes. Federal courts also can sanction the administration by imposing litigation-related limitations on the Government, ranging from preclusion, waiver, and striking to—in the most extreme cases—entry of default judgment. Parrillo’s study, for instance, found multiple instances in which federal courts “seeking to sanction an agency for contempt … imposed adverse outcomes on the agency within the lawsuit itself or within the particular agency proceeding that is the subject of the lawsuit.” And the DDC has sanctioned the Government with entry of a default judgment—effectively ruling in favor of the other party—observing that the “rule disfavoring default judgment against the government ‘does not relieve the government from the duty to defend cases or obey the court’s orders.’”
III. Federal Courts Can Appoint Non-Marshals to Enforce Orders
Even if the USMS refuses to act, federal courts have powerful alternative mechanisms to appoint officials other than Marshals to enforce their orders. While the below list is not exhaustive—Rutgers Law School Professor David Noll, for example, has proposed a different basis for appointing non-USMS law-enforcement personnel—we have identified at least three current mechanisms for appointing such individuals: the All Writs Act, federal courts’ inherent authority, and Federal Rule of Civil Procedure 70.
The All Writs Act
This statute empowers federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions.” When the Marshals are ordered to stand down, the All Writs Act could operate as a legal backstop, enabling courts to fill the resulting enforcement gap by appointing other officials, including state law-enforcement officers. The Supreme Court has held that the Act authorizes commands “necessary or appropriate to effectuate and prevent the frustration of orders” issued under a court’s jurisdiction. A situation where the Executive blocks contempt enforcement would represent precisely the kind of unanticipated gap—a “casus omissus”—that the Act is meant to address.
Inherent Judicial Authority
Courts also possess inherent power to ensure the performance of their constitutional duties. As the Supreme Court has stated, “[c]ourts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.” This includes the power to appoint individuals “unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause,” and whether such aid is necessary “is ordinarily within the discretion of the trial judge.”
One example is Young v. United States ex rel. Vuitton, where the Supreme Court upheld a court’s appointment of a private prosecutor to pursue contempt charges when the Executive refused. As the Court emphasized, “[t]he ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.” Just like in Young, if the USMS refuses to enforce contempt orders, district courts must be able to appoint officials to do so; for without that power, “courts would be ‘mere boards of arbitration whose judgments and decrees would be only advisory.’”
Federal Rule of Civil Procedure 70
If a case already has proceeded to a final judgment that requires a party to perform a “specific act” within a specified time, Federal Rule of Civil Procedure 70 authorizes the court to hold a party in contempt for disobeying that judgment and to “order the act to be done—at the disobedient party’s expense—by another person appointed by the court.” This Rule, which a court may use to order relief against the Government or specific Government officials, may be used to order relief even against government officials and provides courts with explicit authority to appoint non-USMS personnel to enforce the court’s orders.
IV. Practical and Legal Considerations Before Appointing Alternatives
The moment the President or Attorney General orders the USMS to stand down, the Federal Government will have entered dangerous and largely unprecedented territory. At that point, courts will need to consider whether any other options that do not require USMS enforcement remain available, and if not (or if courts already have exhausted those options to no avail), whether to appoint non-USMS officials using one of the above authorities.
In making that decision, courts should consider a few factors:
- Anticommandeering Concerns: A state official appointed by court order might try to argue that their appointment violates the anticommandeering doctrine, which generally limits federal control over state action. Courts can mitigate this risk by specifying that the appointment is voluntary and that the appointee may decline. Alternatively, a federal court may appoint former military officials who are not affiliated with any state law-enforcement agency, or officers from the D.C. Metropolitan Police Department, whom the C. Circuit has recognized are not subject to anticommandeering limits.
- Risk of Armed Standoff: Courts will need to consider that non-USMS officials appointed to enforce court orders against the Government may find themselves in direct conflict—and perhaps even an armed standoff—with federal law-enforcement officers. That possibility is particularly salient in a context where the Executive Branch already has rejected the Judiciary’s Article III authority. Courts must weigh this risk carefully.
Advance preparation—through clear rulings, carefully built records, and signaling potential remedies—will place courts in the strongest position to respond if that day arrives.
V. The Judiciary Has Faced This Test Before
This is not the first time American courts have been tested. A century ago, in United States v. Shipp the Supreme Court held a Tennessee sheriff and five others in contempt for lynching Ed Johnson, a man whose execution the Court had stayed pending appeal (and whose conviction was later posthumously overturned). In an extraordinary move, the Supreme Court initiated its own contempt proceedings—the only time it has ever conducted a contempt trial. It held Shipp and others accountable, reaffirming that its authority must be respected even in the face of violent defiance.
Shipp established that, unless and until the Supreme Court issues a judgment declining jurisdiction, and without regard to the lower court’s jurisdiction, the Supreme Court has “authority … to make orders to preserve” the status quo. Although the Supreme Court’s contempt proceeding in Shipp did not involve federal officials, the Court nonetheless confirmed its authority to police, enforce, and ensure compliance with its own interim orders—regardless of its ultimate holding on the jurisdictional basis for those decisions.
This principle should apply with equal force to cases in which the Federal Government is a party—particularly where the Executive resists judicial orders by challenging the jurisdiction of lower courts. As the United States Court of Appeals for the D.C. Circuit—sometimes called “the second most important court in the land”—has made clear: “Contempt orders have been levied against executive branch officials and agencies without even so much as a hint that such orders offend the separation of powers.” In other words, the judiciary’s enforcement powers do not disappear simply because the Government is on the receiving end. Just last month, the Supreme Court—invoking its powers under the AWA—stopped the Government from removing allegedly undocumented Venezuelan immigrants, notwithstanding Justice Alito’s strenuous dissent that both the court of appeals and the Supreme Court lacked jurisdiction over the case. Although that case did not involve a contempt finding, it affirms that the Court is willing to assert judicial authority even when the Executive disputes the legitimacy of that authority.
That the Government could disobey federal court orders and attempt to avoid any resulting accountability is as frightening as it is unprecedented. But that does not mean that the USMS and federal courts must or should acquiesce in the face of such a threat. And even if the USMS succumbs to pressure, the federal courts possess a number of tools to ensure that the Government is held responsible for its failure to enforce or execute court orders. Courts need not and should not be afraid to use those tools if the time comes.
An amici curiae brief making these points in greater detail was recently submitted in J.G.G. v. Trump, the case in which a putative class of Venezuelan immigrants challenged their summary removal to El Salvador.
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