by Ken MacVey
After many years as a practicing lawyer, I remain proud of what I do. Putting aside lawyer jokes, stale references to ambulance chasing and analogies with other professions that charge by the hour, I have enjoyed doing what lawyers do and I am unapologetic about it.
Sometimes to clients, colleagues, and classes that I teach, I give my elevator pitch on why law is essential to, in fact constitutive of American society. It varies but goes something like this –
“We are all aware of the visible physical infrastructure we use every day that we take for granted but can’t do without. The water reservoirs, pumps and pipelines we rely on to have a glass of water or to take a shower. The electrical plants and transmission lines that light and power our homes and businesses. The sewer systems that protect our public health. The roads and freeways that can take us anywhere in the country and deliver our food and medicine and every other item of commerce we depend on.
“But there is another infrastructure you don’t see – the invisible infrastructure of law. Without law, the physical infrastructure we take for granted would not exist as we know it. For roads or sewers to be constructed and run, contracts must be entered, funds procured by loans and bonds, and health and safety standards set by law. In fact, there is not a single thing in our lives that you care about law does not touch. Your name and identity – a matter of law. Your home and personal property – a matter of law. Same with the money in your bank account; protection from thugs and crooks; the right to speak or vote. Your citizenship and the country you live in, the United States of America, are creatures of law. Law is what ties all of us together.”
“Law as our invisible infrastructure” is my elevator pitch as to how and why law is fundamental to what we do and who we are. And just as engineers and workers attend to one kind of infrastructure, judges and lawyers attend to another.
But now I am wondering, will I still be able to give this pitch? In the infancy of the second Trump administration, we are witnessing one of the gravest internal threats to the rule of law in American history.
Consider: President Trump pardons hundreds of convicted felons who broke into the capitol to halt a constitutionally mandated count of presidential electoral votes. In doing so, President Trump declares that violent felons who had beaten up police and chased Senators and Representatives into hiding were “true patriots,” not criminals. President Trump signs an executive order that purports to obliterate a provision of the 14th Amendment regarding birthright citizenship. He fires in violation of Congressional statute seventeen inspector generals who are responsible for auditing multiple federal agencies for fraud, waste, and wrongdoing. He pronounces on his website that CBS should lose its license with the FCC and 60 Minutes should be shut down because of a televised interview of candidate Kamala Harris was allegedly edited in her favor. The FCC, with its new chairman appointed by Trump, puts the matter of the interview on its docket. Private citizen Elon Musk, who has made billions from government and spent over a quarter of a billion on Trump’s presidential campaign, roams with his band of anonymous minions through federal headquarters to digitally siphon confidential information, including personal information on millions of people. Thereupon Musk announces that agencies, jobs and congressionally appropriated funding for programs are to be terminated, which they are. The Trump’s Administration acting US Attorney for the District of Columbia in a letter posted on X thanks Musk for identifying individuals for criminal investigation and vows that he is prepared to “chase them to the end of the Earth.”
This is just a sample. Each day brings new legal horror stories. The Trump administration is engaging in a campaign that the American Bar Association described in a written statement last week as “wide-scale affronts to the rule of law.” It further observed: “No American can be proud of a government that carries out change in this way.” (The ABA did also more than just speak out–last week it filed a lawsuit challenging the Trump administration freezing of USAID foreign assistance funding that was authorized and appropriated by Congress.)
Several courts have stepped in and issued restraining orders and injunctions. One federal judge appointed by President Reagan in issuing an injunction regarding birthright citizenship declared “under my watch, the rule of law is a bright beacon which I intend to follow.” But commentators have asked, what if President Trump and his administration refuse to comply? This is not an idle question. One court has already ruled the Trump administration defied its order and warned Trump officials of the risk of criminal contempt.
This issue of court order defiance arose well before the second Trump administration even got started. JD Vance in a podcast in 2021 outlined a presidential action plan: “Fire every midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.” He went on: “Then when the courts stop you, stand before the country like Andrew Jackson did and say, ‘The Chief Justice made his ruling. Now let him enforce it.’” (The Jackson quote is mythical.)
Maybe with comments such as this in mind, Supreme Court Chief Justice Roberts in his December 31, 2024 Annual Report warned of an increase in calls to defy court orders. Yet despite the Chief Justice’s admonition against such calls Vice President Vance, a little over a week ago, argued that it is “illegal” for courts to constrain the president’s “legitimate” power.
There is a moral, practical, legal, and logical contradiction in asserting the authority of the President includes the power to defy the law and to defy court orders. After all, presidential authority itself rests on law and is solely legal in nature. And it is the job of the courts, not the President, to adjudicate the law. President Trump and his administration cannot justifiably rely upon the authority of law in order to destroy it.
As concerning and wide-ranging as the 2024 Supreme Court presidential immunity/Trump ruling is, nothing in that decision suggests a President may defy court orders with impunity. The Supreme Court by that decision did not sign a suicide note regarding its own power. And it did not hold that when it comes to the President or the executive branch court orders are merely requests appended with the word “please.”
In fact, the Supreme Court held there is no presidential immunity for unofficial conduct. By definition defiance of a court order is outside the bounds of law and therefore should be deemed “unofficial.”
Courts have the function and duty to administer the law. They also have mechanisms and the inherent power to enforce their orders. The question is not, do they have this power? A long line of authority holds that the courts inherently have powers to do their job and enforce their rulings even if these powers are not explicitly cited in written statutes or the Constitution. The question is, will courts have the fortitude to assert their power? Will they be prepared to be innovative, expansive, unhesitant, unwavering, fearless and swift in putting down open defiance of their orders?
Hopefully it will never come to this, but courts have a variety of means to enforce their orders. Criminal and civil contempt for both principals and their subordinates. Monetary sanctions and carefully crafted orders that could make even billionaires shudder. To brainstorm a bit, courts could even make their orders self-enforcing by formally finding that defiance of the order constitutes unofficial conduct subject to potential federal and state criminal and civil liability. That could put teeth in court orders that would give pause to even somebody like JD Vance’s version of Andrew Jackson. These are examples. Other possibilities are limited only by judicious consideration and imagination.
But will the courts need or dare to go that far?
What about the rest of us? Will we simply sit back in silence and watch as our invisible infrastructure, the rule of law, collapses into the equivalent of a smoking pile of rubble and blackened burnt metal?
Will I still get to give, or want to give, my elevator pitch for the rule of law?
Only time will tell.
In the meantime, those who care about the rule of law must remain firm, resolute, and vigilant.