No Appeal, No Compliance, No Remedy

Andrew Coan

When a federal district judge blocked the Trump administration's National Guard deployment to Portland, Stephen Miller called the ruling a "legal insurrection," and influential MAGA personalities called for the President to ignore the court's order. Though the administration ultimately appealed, this rhetoric marks an escalation. After several months of relative moderation, the prospect of outright executive defiance of the courts appears to be growing.

It is hard to predict exactly how such defiance would play out. But if the executive branch loses in district court and refuses to appeal, the Supreme Court would have no obvious vehicle to intervene and district judges few effective tools to enforce their own decisions. This “appellate void” is the product of several settled—and mostly pedestrian—jurisdictional rules, and the limits of the judicial contempt power.

First and most fundamentally, a prevailing party generally cannot appeal. This rule is rooted in the case-or-controversy requirement of Article III. As the Supreme Court explained in Deposit Guaranty National Bank v. Roper, "A party who receives all that he has sought is generally not aggrieved by the judgment affording the relief and cannot appeal from it." A defendant's noncompliance with a district court judgment does not create appellate standing for a prevailing plaintiff. Of course, noncompliance does injure plaintiffs in the colloquial sense. But only an injury caused by the judgment itself creates standing to appeal. 

Mandamus ordering executive compliance might seem like the obvious solution. But when a court issues mandamus to an executive official—commanding compliance with legal obligations—the writ runs horizontally across the branches, rather than vertically within the judiciary. An action seeking this sort of "horizontal" mandamus constitutes an original proceeding, not an appellate one. Following the logic of Marbury v. Madison, the Supreme Court and courts of appeals lack the power to entertain a mandamus action seeking to enforce executive compliance with a district court's order in such cases.

In theory, the contempt power provides a powerful tool for enforcing executive compliance. District courts can impose steep and escalating civil fines on defiant executive agencies and officials. They can even order the arrest and imprisonment of recalcitrant officials. But as the best recent scholarly work demonstrates, contempt has always been a fragile remedy against federal government defendants. In the face of sustained and strategic executive defiance, the doctrinal and practical obstacles may well prove insurmountable.

The most fundamental reason for this is that civil contempt sanctions ultimately depend on cooperation from the executive branch. By statute, the United States Marshals Service is subject to "the authority and direction of the Attorney General." A President determined to defy the courts could threaten marshals with termination and direct the Attorney General to choke off the operating capacity of the office in question. Criminal contempt sanctions are another option. But the President's pardon power looms over any criminal contempt proceeding against federal executive officials.

For a fuller explanation, you can read my new paper on the appellate void here.