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Saturday, April 13, 2019

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

Posted by Howard Wasserman on April 13, 2019 at 12:54 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Well as far as a departmentalist defense of the non-defense of the ACA suit goes, it would make more sense to me if this President weren't the President who advocated for and signed into law the repeal of the tax that his DOJ now claims made the mandate unconstitutional and dooms the rest of the ACA with it. His position is that he signed an unconstitutional law.

Posted by: Asher | Apr 13, 2019 5:20:54 PM

By the way,I have encountered useful article it seems,here ,titled as:

"Public Employees and the Right to Disobey"

By Prof Robert G. Vaughn,here:


Posted by: El roam | Apr 13, 2019 2:03:04 PM

Important indeed. First, I am not so sure, that one can imply contempt of court, on a non party ( direct party, or remote party to proceedings ). Suppose a soldier, or low rank officer or commander, this is more than bit problematic it seems.

Either that contempt of court, is the only offense can be implied here. For federal officials or whatever, will have to refuse or disobey direct orders given to them. This by itself, constitutes surly a federal offense.

Let alone pardoning, and contemplating in advance the pardon all, as an executive tool. This is really strict nonsense. Unbelievable one.


Posted by: El roam | Apr 13, 2019 1:39:27 PM

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