In the realm of American democracy, the question on everyone’s mind is clear: if President Donald Trump chooses to defy the judiciary, what will stand in his way? The impact of federal judges temporarily halting various administration actions has brought this inquiry to the forefront. From challenging birthright citizenship termination to granting Elon Musk’s team access to Treasury Department systems, the courts have become key players in curbing executive power.
While Vice President J.D. Vance advocates for the executive’s defiance of court orders in certain scenarios, traditional belief, championed by Alexander Hamilton, asserts that independent courts are crucial for safeguarding democracy. Hamilton acknowledged the inherent vulnerability of the judiciary to the influence of elected branches, underscoring the need for courts to assert their power in the face of an overpowering executive.
Research of backsliding democracies across the globe reveals three essential paths for the judiciary to counter a powerful and noncompliant executive. Each path hinges on outside support from distinct sources, be it intrastate actors, societal mobilization, or even military intervention.
- Mobilize Intrastate Allies: The most effective and reliable approach involves rallying intrastate actors within various government levels to enforce court decisions against executive resistance. An illustrative example is Brazil, where governors and mayors mobilized to implement public health policies against President Jair Bolsonaro’s wishes.
- Societal Mobilization: In instances where intrastate allies are scarce, societal mobilization can be a potent force. Israel’s 2023 scenario demonstrates how mass protests, economic pressures, and state officials’ opposition effectively compelled the government to halt judicial power curbing measures.
- Military Involvement: Although the riskiest pathway, history has shown that military intervention in countries like Turkey can serve as a check on executive power. However, the reliance on the military can be democratically illegitimate and may open doors to autocratic tendencies.
In the context of the United States, state and local actors have some leverage to enforce court rulings, but the potential lack of compliance from the federal government poses a challenge. While societal mobilization can be a potent tool, it comes at an economic and societal cost. Moreover, resorting to military intervention jeopardizes democratic principles and can pave the way for authoritarianism.
Courts worldwide have demonstrated resilience against noncompliant executives by leveraging support from external allies. However, the essence lies not only in whether but in how courts assert their authority against powerful figures. As the future of American democracy hangs in the balance, the manner in which the judiciary asserts its powers will play a pivotal role in upholding democratic norms and principles.
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