What happens if the Trump administration defies the Supreme Court?

By Sohani Goonetillake, ABC

The dynamic that keeps the US courts and executive working together is under question, as federal judges raise concerns that the Trump administration may not be complying with court orders.

The orders specifically related to deportation cases where individuals were removed from the country allegedly without due process despite clear rulings to the contrary.

In one such case, the Trump administration was recently asked to prove it did not violate a court order from Judge James Boasberg.

An appeals court had temporarily halted the judge's efforts to investigate whether the Trump administration engaged in criminal contempt, but the question of what would happen if the courts and the administration were on a collision course looms large.

The ABC in Australia spoke to two experts to answer questions about what happens if the president or their administration defies the authority of the courts.

What can courts do if the Trump administration doesn't comply?

Courts, including the Supreme Court, the highest court in the federal judiciary had limited options if their rulings were ignored.

As Rosalind Dixon, a law professor at UNSW, explained, "Courts have famously been called the least dangerous branch because they depend on the executive branch to implement their opinions, and they have a limited range of tools available in the event of non-compliance".

To understand why, it helped to know how the US government was structured.

Like Australia, the US followed a separation of powers, dividing responsibilities across three branches:

• The Executive, led by the president and supported by his workers;
• The Legislative, made up of Congress (the Senate and House of Representatives);
• The Judicial, which includes the Supreme Court and lower courts;
• The judicial branch relies on the executive branch to enforce its decisions.

When that compliance breaks down, courts could initiate what's called contempt of court proceedings to put pressure on individuals to comply.

There were two main types of contempt sanctions:

• Fines
• Incarceration

"We haven't very often seen government officials actually spending time in jail for contempt, but it has happened from time-to-time, and it certainly could happen again," Professor of Law at Case Western Reserve University, Cassandra Robertson, said.

Is the Trump administration at risk of contempt?

Possibly - and a federal judge had already found "probable cause" to consider it.

The situation centres on a recent proclamation from President Trump, who invoked the Alien Enemies Act of 1798 to justify the deportation of Venezuelan nationals he claimed were part of the criminal gang Tren de Aragua.

Shortly after Trump issued the order, federal Judge Boasberg issued a temporary restraining order to pause deportations until a full hearing could be held.

However, during a hearing on this case, the plaintiffs' lawyers informed the court two planes carrying deported Venezuelans were already "in the air".

Judge Boasberg responded by ordering those individuals be returned to the US but in court filings on Monday, the plaintiffs' attorneys cited publicly available flight data and news reports which suggest that the Trump administration allowed these planes to land and deplane their passengers after Judge Boasberg issued his order.

This could amount to a direct violation of a court order and Judge Boasberg ruled "probable cause" existed to find the Trump administration in criminal contempt.

He also demanded a government declaration identifying which officials made the decision not to turn the planes around.

"I think what the court believes is that there are other people within the administration who've been making these decisions not to comply with the court order," Robertson said.

While no formal finding of non-compliance had been made yet, she noted "the courts are certainly concerned that the government doesn't seem to be complying".

"Even the government's own statements seem to be utterly at odds with what the court has ordered if you look at the White House's posts on X."

Posts from the White House on X appeared to suggest a refusal to comply with a court order, specifically in the case of Kilmar Abrego Garcia, a man the US government admitted it mistakenly deported.

Can Trump claim immunity from contempt proceedings?

Holding a sitting president in contempt would be unprecedented and, the experts spoken to by the ABC said it was legally murky.

"This is me speculating a little bit here but I think it would probably not be possible to hold the president personally in contempt," Robertson said.

"There's the immunity issue, which might apply."

The immunity issue Robertson referred to was last year's Supreme Court ruling that declared "that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority".

Robertson also suggested contempt sanctions weren't going to be effective against the president.

A monetary sanction might simply be paid by the government and threats of incarceration "really interfere with the functioning of the presidency".

Instead, the courts would likely target lower-level officials who were implementing the government's policies.

"Just, as a matter of pragmatism, courts will avoid a direct confrontation with the president if they can achieve the same outcome by making their orders against lower-level officials," Rosalind Dixon explained.

"If (a confrontation with the president) occurs, it's going to put the constitution and the rule of law very firmly to the test in ways that we should all be very nervous about."

How can contempt proceedings be avoided?

Judge Boasberg gave the Trump administration two options in his ruling: to "purge" itself of contempt, or to remedy its non-compliance.

"So, essentially, if somebody, like every government here, is willing to comply with the court order even far too late, then that's a way of avoiding contempt proceedings," Robertson said.

In his ruling, he wrote "the most obvious way for defendants to avoid contempt proceedings is by asserting custody of the individuals who were removed".

But what does asserting custody mean in this context?

"I would say that the judge is asking for the individuals to be brought under US power, that is, they could be held at a military base or somewhere outside the country, as long as the US had control over them," Robertson explained.

"That way, the individuals could have the ability to file for habeas relief."

Habeas relief referred to the legal procedure by which a court ordered the release of a person from unlawful detention or imprisonment.

Is there a history of presidents defying the courts?

A president defying the court was largely uncharted waters but the most famous example dated back to the Civil War, when a very conservative court ordered then-president Abraham Lincoln to release Confederate prisoners.

Even in that instance, President Lincoln complied, but just barely.

"He chose to comply in the narrowest possible way with the court's order and that is an unfortunate precedent, because in that instance, there was an extremely good reason for that, but it has created something of a precedent that is undesirable in this instance," Dixon said.

Dixon noted that what made the current situation more alarming was "the possibility that the Trump administration might fail to comply even in the narrowest sense".

"Obedience to court authority and the rule of law has been such a part of the American fabric for 200 years," Robertson said.

- ABC