The Appellate Void

Andrew Coan

What would it look like for the executive branch to defy a court order? Typically, we picture a dramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there's another, less dramatic scenario, which has been largely overlooked in recent commentary.

Suppose the administration simply defies a district court order and declines to appeal. The plaintiffs, having already won, would have no standing to file an appeal of their own. Nor could they petition the Court of Appeals or the Supreme Court for a writ of mandamus.

The Courts of Appeals have no jurisdiction to grant mandamus against executive officials under these circumstances. As Marbury v. Madison established, such actions constitute original, not appellate, proceedings and can only be brought before a court with original jurisdiction. The All Writs Act permits writs only "in aid of jurisdiction," requiring an existing appellate case. Without an appeal, neither the Supreme Court nor the Court of Appeals would possess a clear procedural vehicle to intervene.

Contempt sanctions might solve this problem. But the best recent scholarship suggests that they are a fragile remedy even under normal circumstances. In this scenario, it seems quite possible they would fail completely. Enforcement depends on cooperation from the executive branch. And without an appeal, higher courts are likely powerless. 

Instead of a cataclysmic clash with the Supreme Court, we might see the President casually brushing aside a single, obscure district judge, like a pesky gnat.

As far as I can tell, this scenario would be unprecedented in modern times, so there may well be wrinkles I have overlooked. Historically, executive officials have had good success appealing contempt sanctions and other compliance issues. Probably, that's the route the Trump administration will take, as it has already done in several cases. But a President intent on defying the courts might see tactical advantage in confronting a single district judge rather than the Supreme Court. 

This approach offers an opportunity to test the limits of judicial authority and normalize non-compliance with the courts in a lower visibility setting. It could be especially attractive in a case the administration expects to lose on appeal--or as a warning shot in response to a Supreme Court defeat. 

Think of this strategy as a kind of reverse Marbury, establishing the impotence of the judiciary, while leaving the Court no obvious avenue to respond.

Polls show that large majorities of the public and both major parties want the President to comply with court orders. Would defying a lone district judge carry the same political cost as defying the Supreme Court? Could creative contempt sanctions ultimately persuade the administration to appeal? Or might higher courts craft novel procedural theories for intervening in this extraordinary situation?

There is no way to know. But this scenario deserves more attention than it has received.