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Anti-Trump protesters hold signs outside Manhattan Criminal Courthouse in New York last year.
The biggest question in America right now is whether Donald Trump and Elon Musk will abide by restrictions on their power from the coequal branches of government. Thus far, Congress has pleaded nolo contendere to presidential challenge to its authority, standing by idly as agencies authorized by Congress (that can only be unauthorized by Congress) are simply deleted, as spending appropriated by Congress is rescinded. Even half-decent ideas like no longer losing money by making pennies are being commandeered by the president, even as Article I of the Constitution literally gives Congress the exclusive authority “To coin Money.”
The primary refuge at the moment for those who want to stop the slide into authoritarian rule by diktat is the courts. Given the rightward tilt of the ultimate arbiter of such disputes, the Supreme Court, that is not encouraging. Early outcomes in emergency cases have fared well: The courts have at least temporarily blocked the Office of Management and Budget’s unilateral freeze on federal grants and loans, the fake “buyout” offer for federal workers, the mass administrative leave for employees of the U.S. Agency for International Development (USAID), the Musk team’s access to the Treasury Department payment system, the proposed end of birthright citizenship, and more. By Monday afternoon, the unilateral cut to overhead on National Institutes of Health grants was blocked. But we’ve yet to see the conservatives on the Court weigh in.
A much more important question is playing out in real time: Will the Trump administration simply refuse to follow adverse court orders, simply ignoring the courts and Congress on the way to dictatorial governing? That’s what should keep every patriotic American up at night. And the early indications should only raise that alarm.
The continued holdup of congressionally appropriated funds as a result of the OMB freeze, which was rescinded and blocked by the courts way back on January 29, is just one example. On Monday, Judge John McConnell issued an order in a case brought by 22 states and Washington, D.C., that his temporary restraining order blocking the payment freeze is being abused. “The plain language of the TRO entered in this case prohibits all categorical pauses or freezes in obligations or disbursements based on the OMB Directive or based on the President’s 2025 Executive Orders,” McConnell wrote, meaning that even the illegal executive spending decisions outside of the OMB order should be halted.
We know that spending blockages continue to happen. Head Start providers aren’t getting their promised funds; neither are community health centers, some of which have had to close because even a small delay in funds is catastrophic. Environmental funds related to Trump’s alleged “termination of the Green New Deal” have been frozen; some funding was restored but not all. The electric-vehicle charger program has been suspended, also at odds with the judicial order. The broad freeze on foreign aid has had the residual effect of freezing funds that farmers expected, because the international food aid programs are stuck. Government agricultural programs have separately not been paying out. Another $900 million in contracts that shed light on the state of American schools was cancelled, illegally, just yesterday.
The higher courts have a bad track record at punishing open disobedience of their rulings.
The Justice Department has tried to argue that some spending pauses were based on other Trump executive orders and not the OMB memo. But McConnell, whose federal court order blocking the payment freeze isn’t even the only one, rejected that. He said that the continued blockage, regardless of the alleged authority for it, is “likely unconstitutional and has caused and continues to cause irreparable harm to a vast portion of this country.”
But Monday’s order is merely a reiteration of what McConnell has already said: Immediately restore funding and clear any hurdles to doing so. Well, what if they don’t? The White House clearly wants to arrogate all spending decisions to itself and illegally impound spending it doesn’t like, and it has yet to allow court orders to get in the way.
Similarly, the court order temporarily reinstating and restoring systems access for thousands of USAID employees who were laid off has not been complied with, according to a filing on Monday from the plaintiffs in the case. The plaintiffs identified multiple employees who have not been given access yet, though others have been able to get in. Many were told that they could not get access back until “political leadership signed off,” an astonishing thing to say about compliance with a judicial ruling.
Contracts with USAID are being terminated en masse, despite exemptions that are supposed to be in place for humanitarian assistance. A USAID inspector general’s report highlights the extent of the wreckage, with $489 million in food assistance left rotting at ports and warehouses.
On the Treasury payment system front, the news is slightly better. According to a declaration from Tom Krause, the DOGE liaison at Treasury, the department is complying with the order to terminate access to the payment system for people outside the department, including political appointees and “special government employees,” and to destroy all records outside of Treasury’s control. Krause states he is the only person who had access at the time the order was issued, and he is not a coder (he calls his access “over the shoulder”). Marko Elez, the young coder who also had access, resigned after information got out about racist posts he made; according to this Sunday declaration, he has not been retained, contrary to Musk’s claims.
Krause lobbied for access for contractors that service the payment system, saying they were necessary to its functioning. He also wants some political appointees, including Treasury Secretary Scott Bessent, to be able to “attend briefings concerning information obtained from the data.” But Trump’s lawyers have been far more belligerent than just calling the court order overbroad, arguing that no judge can prevent a president from directing his executive branch and appointing his employees.
Vice President JD Vance was more explicit: “Judges aren’t allowed to control the executive’s legitimate power.”
It would be news to Joe Biden that courts cannot constrain the executive branch, but the hypocrisy angle is really the least of our worries at this point. What happens if court orders are not met with compliance? The higher courts have a bad track record at punishing open disobedience of their rulings. As Yale Law professor Nicholas Parrillo wrote for the Harvard Law Review in 2018, higher courts have not used sanctions like imprisonment for contempt or large fines, even if they have not foreclosed them. The “shaming effect” of sanctions without consequence have been enough for compliance in most years; Parrillo finds “no examples of open presidential defiance of court orders in the years since 1865.” But the literature needs an update.
Parrillo is correct to say that such open defiance would spur a constitutional crisis; indeed, that’s where many believe we are today. But a crisis requires actual confrontation. There are certainly some people willing to fight (see this missive from the American Bar Association). But Congress has decided not to play the game, and the courts are not necessarily reliable in that regard. Either the Trump administration is using the usual intimidation tactics to get their way, or they are prepared to bulldoze the judicial branch, placing the rubble alongside the legislative branch that has so far self-destructed. The answer will reveal the remaining hope for democracy.
Importantly, the public also has a role to play. Whether Trump has the consent of the governed will determine the boundaries of his aggression. The fire lit under the public has thus far been small, but as people see the tangible consequences, it will burn and burn. Will we be roused to action, in that ultimate moment when Trump is told what he cannot do, and he ignores it?
