Can Donald Trump Refuse to Follow an Unconstitutional Judicial Order? (A Deep Dive)

This is that promised piece. I couldn’t get to it immediately but it is here, so strap in. This is going to be a long one.

Ever since Trump came into office, there has been a saturnalia of lawsuits trying to hamstring him and I think Democrats and their activist judges are getting close to a ‘crossing the Rubicon’ kind of moment. I mean, think back to how things were when the ink on the Constitution was fresh and the Federalist Papers were trying to sell this new form of the government to the American people. Alexander Hamilton wrote in Federalist #78 that 

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

If you have ever heard someone say that the judiciary is the least dangerous branch, or heard that the judiciary doesn’t have the power of the purse or the sword, that is where those phrases come from. And these were the terms under which this Constitution was sold to the American people in that day. 

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Except that hasn’t been entirely true for some time. If you win a lawsuit against the Federal Government, the judiciary will order that some money will be taken from the public fisc and put into the hands of someone else. And for that matter when the Supreme Court invented a right to a free lawyer in some criminal cases in Gideon v. Wainwright, 372 U.S. 335 (1963), they were also telling the public what they had to spend their money on, too. So, they have been exercising the power of the purse.

And now these judges are purporting to tell Trump when he can or can’t use the power of the sword.

But, as I said, there is a legal theory that holds that Trump has the power to tell the judiciary to get bent—that if they give him an order that they don’t have the power to give, that he can tell them to pound sand. And what is this theory I am referencing?

I call it ‘executive review’ and I will explain the theory behind it.

We have to go back to Marbury v. Madison, 5 U.S. 137 (1803), which is the decision that recognized what legal nerds call ‘judicial review.’ Judicial review is the power of the courts to determine whether or not laws (and eventually executive actions) violate the Constitution and to declare that if they violate the Constitution, that they are null and void. And I am going to discuss Chief Justice Marshall’s reasoning in Marbury in a lot of detail because as I do, I hope you will start to see the argument for what I am calling executive review.

One interesting thing is that in that case, it was the Supreme Court denying to itself a power that Congress purported to give to the Court. I won’t explain exactly how they were denying themselves a power, because 1) I don’t want to go off on that tangent, and 2) when Chief Justice Marshall discusses judicial review, the language is so general you can apply it to any time when Congress passes a law that the courts think is unconstitutional. But just know that 1) the Supreme Court thought Congress gave them a power, 2) the Court thought it was contrary to the Constitution for Congress to do that, and 3) therefore, they refused to exercise that power.

Moving on, this is how he starts off that discussion:

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

Let me translate that from old-timey legalese to something a little more current:

The question is whether an unconstitutional law should still be treated as a law is interesting to the people of the United States. But it’s actually not very hard to answer the question. All we have to do is reference a few long-recognized principles to resolve it.

The first principle, according to Marshall, is that the American people have the right to create a constitution in the first place. The second is that if they choose to create a constitution, it is the supreme law of the land—above any mere statute. Marshall explains that such a constitution also 

assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

In other words, the American people created a Constitution, and in doing so they set limits on the Federal Government.

And there’s nothing radical about that so far, although I will note two things that are interesting in Marshall’s opinion. First, Marshall argues that ‘the people’ of the United States established the Constitution. He rejects the ‘compact theory’ that holds that the States created the Constitution, and he does so more forcefully in McCulloch v. Maryland, 17 U.S. 316 (1819).

Second, I would add to his reasoning that without the Constitution, the Federal Government simply has no power. I occasionally hear the left complain about following the Constitution when they don’t want to, the left saying something like ‘why should we have to obey the rules of some dead old white men?’ Often, they throw in a reference to slavery in that, too. My response is typically something like ‘so you want to abolish the Federal Government?’ The fact is that the Federal Government, including the Federal Judiciary, gets all of its powers from the Constitution. And if they are getting their powers from the Constitution, then how can they ignore the limits on that power placed in the same document?

Marshall goes on:

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

In other words, he is asking whether the Supreme Court is bound to follow a congressional statute even if it unconstitutional. And again, I will rewrite that language to be more contemporary:

We know that the Constitution sets certain limits on Congressional power. But what is the point of limiting that power in the Constitution if we have to obey an unconstitutional statute? Either the Constitution overrides an unconstitutional statute, or the legislature can effectively amend the Constitution by a regular law.

Marshall goes on:

Between these alternative[s] there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. … 

Certainly[,] all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

I tend to think the language of the first paragraph is clear enough but the next two can be summarized this way: The basic understanding of anyone who has ever written down a constitution of any kind is that it is the fundamental law of a country and thus an unconstitutional law is void—a nullity.

Now I have seen modern legal academics criticize this passage by saying something like ‘but why is the fact it is written so important?’ My response is to say this: It’s not just the fact the Constitution is written that makes it binding on the people who make up the Federal Government, but how it is written. James Madison and company didn’t just scribble something on a piece of paper. Article VII of the Constitution explained exactly how the Constitution would come into effect and how it could be amended. I won’t go through all the ins and outs of this procedure except to say it was a royal pain in the keister to have ratified the Constitution, effectively requiring the people of each of the original thirteen states to ratify it before it could take effect in all thirteen states. And then from there, it requires supermajorities to amend it, another pain in the keister. Why would anyone go through all that, if all they had to do was pass a regular law?

Take this hypothetical. Imagine a man wanted to make it a crime to criticize the President, at all. Well, with judicial review, if he managed to convince Congress to pass such a law, it would break a land speed record being declared unconstitutional by our modern courts, and rightly so. So if that person really, really wanted such a law, he would have to go first through the herculean effort of convincing supermajorities in Congress to propose an amendment to the Constitution (this would be the Twenty Ninth Amendment, according to Joe Biden, heh), that would allow for such a thing, either fully or partially repealing the First Amendment. Then he or she would have to convince a supermajority of the states to ratify it. And after he or she pulled off that monumental task, he or she would still have to get a law passed officially declaring criticism of the president to be a crime and setting penalties. It’s not an accident that this is extremely difficult in theory and impossible in reality: That’s our Constitution working exactly as designed, making it difficult to do such a terrible thing.

But imagine if we lived in a world where judicial review didn’t exist, and the Courts simply followed the statutes, even if it conflicted with the law? In that situation, this fascist man would only have to get Congress to pass a law outlawing presidential criticism. That’s not easy, either, but it’s a frak-ton easier than amending the Constitution, first.

So, if that route is available to you, why would anyone ever bother to amend the Constitution? Why would the founders make it so difficult to amend it, if they thought the courts should ignore it and just follow whatever laws Congress passed?

Marshall goes on a bit belaboring this point, but I think this passage is particularly useful:

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

I’m not going to translate this, because I want you to sit on the words he wrote as he wrote them, because here’s the thing. Everything he said applies equally to a situation where the judiciary issues an unconstitutional ruling and the President recognizes its unconstitutionality.

Let us say that hypothetically that the Supreme Court lost its ever-loving mind and ruled unanimously that once a month, every month, a woman would be chosen by lottery among the entire population and sacrificed on the steps of the Supreme Court to the Egyptian God Ra. Imagine that they said that this was demanded by some twisted interpretation of the Constitution. Imagine further they ordered the President to take all necessary steps to make this happen, also claiming that the Constitution required it. 

Of course, this isn’t frakking likely, but let’s play pretend.

Now reasonable people can rattle off a few legal problems with that. For one thing that would violate the Fifth Amendment’s prohibition on the Federal Government taking any person’s life without due process. A more advanced argument is to say something like this:

how would they even be able to issue a rule like this? Article III of the Constitution says that courts can only hear actual cases and controversies. So how could there be a legal case that allows the Supreme Court to issue such a ruling?

But there is a popular view, especially on the left, that maintains that ‘the Constitution is whatever the Supreme Court says it is’ and that claim sweeps away all those constitutional objections. If you bring up a specific limitation, like the Fifth Amendment, the Supreme Court can say ‘posh. We interpret the Fifth Amendment as allowing this sort of thing—nay, demanding it!’ If you bring up the fact there isn’t a case or controversy, they can come up with some BS to throw that aside, too.

Heck, imagine if Congress decided to impeach all of the Supreme Court justices for doing this and the Senate got the requisite two thirds vote to remove these justices. Then the Supreme Court could come back and say ‘but we interpret the Constitution as not allowing Supreme Court justices to be impeached at all!’ Or they might say that the standard for judicial impeachment has not been met. So, despite the Congress purporting to impeach them, they are going nowhere because, according to this theory, the Constitution is what the Supreme Court says it is. If the Constitution is whatever the Supreme Court Says it is, you are effectively giving them unlimited power.

But even the Court itself has pressed this theory. For instance, here’s the Supreme Court itself embracing that theory in Cooper v. Aaron, 358 U.S. 1 (1958):

‘The historic phrase `a government of laws and not of men’ was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.

So, their view is that the Supreme Court decides what the law is, and if you don’t like their ruling on a statute or a constitutional amendment, you have two choices: You can either try to convince the Supreme Court they got it wrong, or you can change the law (including by amending the Constitution, if necessary). That’s a far cry from what John Marshall said in Marbury. In Marbury, judicial review was presented more like Martin-Luther-King-Jr.-style civil disobedience by a judge. Marshall was saying, paraphrase: ‘The President and Congress can do what they want, but we don’t have to go along with it, if we think they are violating the Constitution.’ By the time Cooper came around, the Supreme Court was saying that they had the final say on the law and everyone else had to obey their interpretation. Even the promise that the law could change isn’t really much of a check, when they are claiming to have the final say in how those amendments were interpreted.

Really, the view that the Constitution is whatever the Supreme Court says it is a servile attitude. Those advocates are basically saying that America can become an oligarchy at any time, if the Supreme Court wants to make it one. 

Now, to be fair, Cooper was dealing with massive Democratic Party resistance to the desegregation of the schools, including a campaign of Democratic Party terrorism, by groups such as the KKK. There was an urgent situation that required them to speak forcibly about the power of the courts, to try to quiet the resistence. But now that we aren’t in that emergency anymore, we can all consider the question more soberly and admit that doctrinally they were wrong.

Simply put, is an unconstitutional judicial order, binding onto the other branches, however clearly it is contrary to the text of the Constitution itself?

Go back to the logic of Marbury. In Marbury, the court more or less said, what is the point of having a written Constitution, if Congress can override it by a simple statute? What is the point of making it so difficult to amend the Constitution, if a mere statute can override it?

And the same can be said of judicial orders: What is the point of having a written Constitution, if the Judiciary can override it with a simple order? Why set up a complicated and difficult amendment process, if all it really takes is five Supreme Court justices to effectively amend the Constitution?

Take this passage from Marbury I quoted above:

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Now look how easily it could be adapted to the question of unconstitutional orders, with the changes highlighted in boldface:

Those, then, who controvert the principle that the constitution is to be considered as a paramount law, are reduced to the necessity of maintaining that the President and the members of Congress must close their eyes on the constitution, and see only the judiciary’s rulings.

This doctrine would subvert the very foundation of all written constitutions. It would declare that a judicial ruling which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the judiciary shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the judiciary a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Indeed, it is hard to square the theory that the Constitution is what the judiciary says it is, with the reality that the Supreme Court has reversed itself more than once in our history. For instance, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court said that there was no right to have gay sex. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court reversed Bowers, and today there’s allegedly a right to gay marriage in the Constitution, also according to the Supreme Court. At one point segregation was legal under Plessy v. Ferguson, 163 U.S. 537 (1896) and Brown v. Board of Education, 347 U.S. 483 (1954) started an unbroken string of cases where the Supreme Court said that racial segregation was unconstitutional. Korematsu v. United States, 323 U.S. 214 (1944) upheld Japanese interment, while the Supreme Court officially overturned it in Trump v. Hawaii, 585 U.S. 667 (2018). Roe v. Wade, 410 U.S. 113 (1973) held that there was a right to abortion somewhere in the Constitution with a complicated trimester framework that I guess the majority discovered by contacting the founders via Ouija board, while apparently the séance failed when the Supreme Court reversed itself in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). Indeed, the fastest turnaround I am aware of involved saluting the flag during World War II: In Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), the Supreme Court said that children could be forced to salute the American flag, while approximately three years later in West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), the Supreme Court said that they could not. 

Mind you, no relevant constitutional amendments were ratified between these decisions. I can point toward decisions by the Supreme Court that were overturned by constitutional amendments, the most famous probably being Barron v. Baltimore, 32 U.S. 243 (1833) (holding that the Fifth Amendment—and by implication, the entire Bill of Rights—did not apply to the states) and Dred Scott v. Sandford, 60 U.S. 393 (1857) (declaring that black people were not citizens of the U.S. and could not be made citizens of this country) with both being overturned by the Fourteenth Amendment. But that didn’t happen with any of the decisions I just listed in the last paragraph. The Constitution’s actual words didn’t change: Instead, the Supreme Court just changed their minds about what those words meant. And whatever you feel about those decisions I listed in the last paragraph—and most people are bound to agree with half of them—it is logically impossible to claim that all of them were correct interpretations of the Constitution.

So those are the two choices. Either an unconstitutional judicial order is null and void, or we don’t live in a Constitutional Republic, but rather we live in an oligarchy by judicial fiat. 

Of course there are naturally objections to this approach. I am the first to admit that truly open defiance of a Supreme Court order would be a significant event in the history of our Constitution. Presidents have sometimes refused to follow the interpretation of the Constitution or the law set down in a Supreme Court opinion, while not technically defying an order. The most famous of this is when Andrew Jackson refused to enforce Supreme Court interpretations of the law when allowing for the Trail of Tears to occur. But I don’t know of any case of direct, clear, intentional defiance of a judicial order.

One objection people might raise is this passage in Marbury:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

That passage argued for judicial review by claiming that courts are uniquely concerned about the law. And I will respectfully say I disagree with that. Every Congressperson, every president, and numerous officials in the government have also sworn to uphold the Constitution, too and they have to do legal analysis to determine what that means for them in practical tersm. Congress is supposed to know what the law is, if only because it is their job to reform, repeal and/or update the law as needed in order to improve it. 

And while the judiciary is charged with applying the law in a courtroom setting, the President is charged with enforcing the law in every setting. In Article II, Section 3 it says that ‘he shall take Care that the Laws be faithfully executed’ which is interpreted as giving the president (and the president’s subordinates) law enforcement power. Is the president supposed to enforce laws that he or she knows are unconstitutional until the courts take the time to let him know it is unconstitutional?

Well, in fact Presidents have refused to enforce laws that are unconstitutional from the very beginning. Indeed, many of the earliest pardons were issued because of constitutional concerns. While it might seem outlandish today to suggest Congress might pass a law making it a crime to criticize the President, that is exactly how the courts interpreted the Sedition Act of 1798, which saw several critics of John Adams thrown in prison. Indeed, the courts interpreted that statute to hold that truth was not a defense. And when Jefferson won the 1800 election, he pardoned people convicted under that law. The courts didn’t free these men under the First Amendment. President Thomas Jefferson did. So that’s a 225 year old precedent of Presidents interpreting the Constitution for themselves.

Another objection is that we should trust the courts not to overstep their bounds. But the courts stress that we can’t just go on the honor system when it comes to the Constitution. They don’t just trust Congress to obey the Constitution when they pass laws, to make sure that the laws are not unconstitutional. And they don’t just trust the President when he enforces the law to enforce them within the Constitution. So why should we just trust the least democratic branch/the least accountable branch to keep within the limits set by the Constitution?

But I think the strongest objection is that if Trump does it, the next Democratic president will do it, too. It will set a precedent. It will set a new norm.

pic.twitter.com/waPD1bIxf7

— (((Aaron Walker))) (@AaronWorthing) December 1, 2025

Of course, there is a lot of truth to the notion that Democrats never respect any norms or rules themselves. But this is a norm that so far, they have been honoring. Democratic presidents have obeyed judicial orders they disagreed with, so far.

And, of course, if the precedent is set that the President can ignore judicial orders, then it will inevitably be abused. As I wrote about the Seditious Six video:

[W]henever Democrats talk about the Constitution, we ask sarcastically ‘Which Constitution are you talking about? The Constitution you believe in that has things like a right to abortion and gay marriage in it? Or the actual Constitution which has freedom of expression and the right to keep and bear arms in it?’

There is a certain breed of people—and almost all of them are in the Democratic party—that believe that the Constitution means whatever they want it to mean, rather than looking at it objectively and recognizing that it is a document written by other people whose values don’t always line up with yours. Unfortunately, a lot of those people are in the judiciary and even currently on the Supreme Court, which is how we got the Supreme Court to interpret the Fourteenth Amendment—an amendment written by evangelical Christians who made it a crime to have gay sex—in a way that made gay marriage a constitutional right.

I mean, I joked about it above but Joe Biden actually declared that there was a Twenty-Eighth Amendment to the Constitution and you can expect even weirder shenanigans if the Democrats take the Whitehouse, if a Republican president sets this precedent.

So even if you agree with me that the president can, in theory, disobey an unconstitutional judicial order, it still might make sense for Trump to stay his hand, so as not to set a precedent for Democrats to follow.

I think the truth is for the foreseeable future, we will muddle through in the ambiguity. Trump will follow the courts, but the courts will rightfully worry that Trump might someday defy them. If Trump defied the courts and got away with it, that would be a serious blow to the power of the courts, so they might feel it is better to allow the situation to remain ambiguous—by restraining themselves. That would resemble the ambiguity we had with Presidential immunity before Jack Smith forced the issue. So it might be better to let the possibility of presidential defiance hang over the Courts’ head like a Sword of Damocles, rather than let the blade drop and clearly set that precedent.

But I also think that when push comes to shove, if the courts make an unconstitutional ruling that has seriously deleterious effects, the President has a right and possibly a duty to ignore that ruling. But it shouldn’t be done lightly.

In any case, I am curious about what our commenters might say. Do you agree with the theory that the President can ignore unconstitutional judicial orders? And do you think Trump should invoke it and when? Please sound off.

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