The Oldest Vulnerability in the Constitutional Checks-and-Balances System
The United States Marshals Service famously is the nation’s oldest federal law-enforcement agency. It supports the administration of the federal judiciary by providing courthouse, judge, and witness security and handling prisoner custody and fugitive apprehension, among other things that are difficult for judges, who tend to be limited to activities like issuing written orders and rulings, to accomplish as a practical matter.
Our conventional understanding of the checks-and-balances system does not accord much checking authority to the judiciary, however, which essentially is limited to declaring that a congressional or executive action is unconstitutional. If the chastised branch does not come to heel, there would seem to be little the judiciary can do, except perhaps issue another order.
In 1955, the Supreme Court did just that. Faced with inaction following its landmark ruling in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (Brown I), which rejected in public schools the separate-but-equal segregation regime previously authorized under Plessy v. Ferguson, 163 U.S. 537 (1896), the Court issued its Brown II decision, demanding that schools desegregate “with all deliberate speed.” Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 301 (1955) (Brown II).
(Somewhat interestingly, some view the “with all deliberate speed” language not to mean “quickly,” which I think is how it is taught today, but as creating a “loophole . . . that allowed Southern states to stall racial equality.” This view may stem from the procedural particularities of the Brown II ruling, which sent various post-Brown I challenges back to various federal trial courts and charged those courts with the task of entering new “orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Id. Thus, “without an official court order, states could essentially take as little or as long a time as they deemed necessary to desegregate their school system.”)
Still, despite the Brown II reprimand, inaction persisted in some quarters such that necessitated President Dwight Eisenhower’s use of federal soldiers to force compliance in Little Rock.
Less than two weeks into his term, President Donald Trump’s administration has presented the nation with a similar sort of constitutional problem. On Friday, he issued an executive order banning non-citizens from entering the United States from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen for ninety days and suspending the Refugee Assistance Program for 120 days. The executive order also provides that, “upon the resumption of the [Refugee Assistance Program] . . . the Secretary of Homeland Security  is further directed to . . . prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Given the executive order’s focus on countries with majority-Muslim populations, many recognize this language as a religious-based carve-out for Christians. Among other things, the executive order also places a cap– at 50,000– on the number of refugees who will be allowed to enter the country during fiscal year 2017.
The next day, multiple federal trial judges separately issued temporary restraining orders to petitioners who had arrived in the country with previously valid immigrant visas but were detained at airports under the new executive order and lawful permanent residents. The court orders are supposed to halt enforcement of key provisions of the executive order and prevent removal of affected individuals from the country. (Numerous other legal actions have been filed challenging the order.)
Precise information is difficult to come by, but there have been reports that U.S. Customs and Border Protection (the sub-agency of the Department of Homeland Security charged with law enforcement at the nation’s borders) officials were refusing to comply with the court orders staying enforcement of the executive order by continuing to detain or deport people attempting to enter the country and denying detainees access to legal counsel. A DHS press release stating that the agency would continue to enforce the executive order mentioned, though seemingly deemphasized, the court orders. A more recent press release from CBP asserts that the agency “immediately began taking steps to comply with the [court] orders and did so with professionalism.”
A refusal by the executive branch to comply with federal court orders could present an even more significant constitutional problem than the one at issue surrounding Brown, because it would present a direct challenge to the judiciary by a coequal branch, and because an Eisenhower-like intervention would be unavailable.
There is no obvious path to resolution of such a head-on affront to the authority of one branch of the federal government by another, and this particular gap in the federal governing apparatus is the most vulnerable one. While some have looked to the Marshals to address the currently brewing conflict, it remains unclear what they actually could or would do:
In the meantime, while the possibility of a constitutional crisis looms, uncertainty likely exists as a very real detrimental consequence for those directly affected by the conflicting executive and judicial orders.
As a momentary closing point, here is a recent passage from a judicial decision written by Judge Neil Gorsuch, the person President Trump this evening nominated to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, quoted in a news report, that suggests that a Justice Gorsuch would be concerned about separation-of-powers matters and would look upon an expanding executive branch in that context with a critical eye:
GUTIERREZ-BRIZUELA v. LYNCH: In this 2016 case, Gorsuch wrote for a panel of judges who sided with a Mexican citizen who was seeking permission to live in the U.S. The case gave Gorsuch an opportunity to raise an issue he has championed in his time as a judge: whether courts should so readily defer to federal agencies in determining what laws and regulations mean.
Referring to high-court cases that Gorsuch believes cede too much power to agencies, he wrote: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is [Supreme Court precedent addressing executive-branch authority] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”