Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
Editorials & Other Articles
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
The Appellate Void: Trump Could Defy Judges Without Confronting the Supreme Court -- Lawfare
https://www.lawfaremedia.org/article/the-appellate-void--trump-could-defy-judges-without-confronting-the-supreme-courtAndrew Coan
By refusing to appeal adverse rulings, a president could defy lower courts while denying higher courts any clear path to intervene.
When a federal district judge blocked the deployment of National Guard troops to Portland on Oct. 4, U.S. Homeland Security Adviser Stephen Miller called the decision a “legal insurrection.” Other influential MAGA personalities demanded President Trump openly defy the courts. Though the administration ultimately appealed and obtained a stay of the decision—later thrown out by the full U.S. Court of Appeals for the Ninth Circuit—this rhetoric represented a sharp escalation from earlier in the year. Outright defiance of court orders seems increasingly plausible.
If and when that moment arrives, it could play out in several ways. The most obvious scenario—and the one that has dominated the popular imagination—is a dramatic showdown between the president and the Supreme Court. But another plausible scenario has been largely overlooked: After an adverse ruling, government defendants might simply ignore the district court’s order and decline to appeal. As the prevailing party, the plaintiffs could not appeal either. The result is what I call an “appellate void”—a jurisdictional gap in which lower federal courts lack effective tools for enforcing their decisions against a recalcitrant executive, and higher courts lack any obvious path to intervene.
This scenario is not purely hypothetical. The Trump administration has already tested variations of this strategy. After multiple district courts preliminarily enjoined the president’s executive orders targeting law firms on First Amendment grounds, the administration initially declined to appeal these decisions even as it filed interlocutory appeals in scores of other cases. During this period, it continued holding the orders over the heads of firms that chose to settle rather than litigate, while apparently complying with preliminary injunctions protecting firms that brought suit. For instance, “Kirkland & Ellis, Latham & Watkins, A&O Shearman, and Simpson Thacher & Bartlett each agreed to provide $125 million in pro bono or free legal work,” according to the White House. The orders thus retained much of their in terrorem effect despite being held unconstitutional by multiple judges. Eventually, the administration filed appeals in these cases.
The Supreme Court’s recent decision in Trump v. CASA, Inc. has created new opportunities for this kind of gamesmanship. By prohibiting universal injunctions in most circumstances, the Court enabled this and future administrations to comply with adverse judgments only as to named plaintiffs while continuing challenged policies against everyone else. When coupled with a refusal to appeal, this “appellate void lite” strategy could deny higher courts any vehicle to establish binding precedent on important constitutional questions, while allowing the government to maintain—truthfully—that it has fully complied with all court orders.
. . .
If and when that moment arrives, it could play out in several ways. The most obvious scenario—and the one that has dominated the popular imagination—is a dramatic showdown between the president and the Supreme Court. But another plausible scenario has been largely overlooked: After an adverse ruling, government defendants might simply ignore the district court’s order and decline to appeal. As the prevailing party, the plaintiffs could not appeal either. The result is what I call an “appellate void”—a jurisdictional gap in which lower federal courts lack effective tools for enforcing their decisions against a recalcitrant executive, and higher courts lack any obvious path to intervene.
This scenario is not purely hypothetical. The Trump administration has already tested variations of this strategy. After multiple district courts preliminarily enjoined the president’s executive orders targeting law firms on First Amendment grounds, the administration initially declined to appeal these decisions even as it filed interlocutory appeals in scores of other cases. During this period, it continued holding the orders over the heads of firms that chose to settle rather than litigate, while apparently complying with preliminary injunctions protecting firms that brought suit. For instance, “Kirkland & Ellis, Latham & Watkins, A&O Shearman, and Simpson Thacher & Bartlett each agreed to provide $125 million in pro bono or free legal work,” according to the White House. The orders thus retained much of their in terrorem effect despite being held unconstitutional by multiple judges. Eventually, the administration filed appeals in these cases.
The Supreme Court’s recent decision in Trump v. CASA, Inc. has created new opportunities for this kind of gamesmanship. By prohibiting universal injunctions in most circumstances, the Court enabled this and future administrations to comply with adverse judgments only as to named plaintiffs while continuing challenged policies against everyone else. When coupled with a refusal to appeal, this “appellate void lite” strategy could deny higher courts any vehicle to establish binding precedent on important constitutional questions, while allowing the government to maintain—truthfully—that it has fully complied with all court orders.
. . .