Lawfare Daily: David Noll on Civil Contempt Against a Defiant Executive

[Intro]

David Noll: When the court has given an executive branch official the opportunity to comply with an order and given them an opportunity to explain themselves and that we still don't see compliance, the court can make findings that the official is violating, clearly established law.

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Research Director at Lawfare with David Noll, Professor of Law at Rutgers Law School.

David Noll: But if you dig into the statute that says what the marshals are supposed to do, enforcing legal process right is still the primary duty of the marshal service. So the, the marshals exist in order to carry out process of the United States, which of course includes enforcement of court orders.

Alan Rozenshtein: I talked with David about his new Lawfare Research Paper, “Civil Contempt against a Defiant Executive.”

We discussed his argument against the common assumption that the courts are ultimately powerless when faced with a noncompliant executive branch. David explained the powerful tools they can use to compel compliance from levying personal fines to appointing their own deputies to enforce court orders.

[Main Podcast]

So your paper challenges a view that I think has become quite common and perhaps depressingly so, and that's that the judiciary is essentially paper tiger if a president simply decides to defy its orders. So tell me more about this conventional wisdom that your paper is reacting to, and maybe also why do you think this honestly, very depressing view has become so prevalent, at least, you know, among people like us who think and write about the law.

David Noll: So, you know, sort of one of the most notable developments of the second Trump administration is this posture of open defiance of the courts. And you see it, you know, sort of most visibly in the Abrego Garcia case where after Judge Boasberg in D.C. ordered DHS to quote unquote turn around the planes that contained deportees that the administration was sending to El Salvador under the Alien Enemies Act there was a, a, you know, a frenzied discussion within the White House.

And according to reporting, Stephen Miller made the call to ignore the judge because the planes were over international waters and on his view of the law there was nothing the court could do about that. So, we're seeing defiance of the courts in a way that we didn't even really see during the first Trump administration.

And that sort of, it takes us to a question about the legal process that, that in law schools and in thinking about the law we tended to take for granted, which is how are these judgements, how are these orders actually enforced? You know, I teach the first-year civil procedure class and you know, we spend months going through how to file a lawsuit, how to defend against a lawsuit, the different moves in a court case, and the process that a, that a case goes through and spend maybe 20 minutes on how judgments are enforced.

It's just taken for granted that if a court has jurisdiction over the case and jurisdiction over the parties, then people will follow the court's orders. And, and of course, as we're seeing now, you know, that's not always, it's not always true, sort of, you know, outside the world of public law. But we're seeing now that when it comes to the president's relationship to the courts, instead of adopting the posture that the courts have jurisdiction to decide cases and court, and the president has to follow court orders, the president can say well, whatever. That's just a piece of paper, right? The courts can say what they want, we're gonna do what we want, and that takes us to the question of what next?

What's gonna happen if a court says, don't do X? And Steven Miller decides, you know what, I actually kind of like doing X. So the broad label for that is the contempt process, right? There's a whole body of law and there's a whole set of legal practices about how courts respond, spawned when parties defy their orders. And way at the end of that process, I don't wanna emphasize that right, at the end of the content process, the ultimate tool that courts have in the U.S.– in England, courts used to cut off arms and you know, other parts of people's bodies as a way of securing compliance with their orders. But in the U.S. right, the ultimate tool that courts have is to order contemnors, people who are defined, the courts to be arrested by the U.S. Marshals.

And this takes us to that that premise that, that, that keeps getting floated, that the courts are powerless. Contemnors are arrested by the U.S. Marshals and the marshals are part of the executive branch. So the thinking is that because the president is at the top of the, the executive branch and the, the executive branch is organized hierarchically, the president, if he doesn't want somebody that the courts have declared to be in contempt to be arrested, can just say, hey, don't arrest that guy. The courts are outta control. The courts have gone crazy. You know, you need to follow, you know, my instructions 'cause I'm your boss. You'll be fired if you actually carry out an order to arrest somebody.

And so that, that prompts this fear that at the end of the day, because courts are reliant on an executive branch agency for enforcement of their orders, what the courts say doesn't really matter and the executive has this no pun intended, trump card to disregard their orders.

Alan Rozenshtein: So one more, one more piece of background before we get into the, the sort of meat of the argument. So say more about the contempt power and, and in particular civil versus criminal contempt, because your paper is very specifically about civil contempt. So just explain why.

David Noll: Right, so contempt is this, this power that courts have to compel obedience with their orders to maintain decorum in court, to punish disrespect of court authority. It's something that comes out of the common law tradition, right? It's not invented in the U.S.. It's something that we inherit when we inherit the English legal system.

And as you mentioned, it's right, it's divided between what's known as criminal contempt and civil contempt. So criminal contempt is, is, is what it sounds like it's a crime, right? It, it, it views defiance of court orders as a criminal offense. When you're charged with criminal contempt it looks in many ways like an ordinary criminal trial. You get notice of the charges. You get to, you know, see the, see the evidence against you. Usually the, the, the court will appoint a prosecutor to, right, to prosecute the government's case.

Alan Rozenshtein: And, and to be clear, criminal contempt, it's not a common law crime. Right. It's, there's presumably a statute somewhere that Congress at some point enacted saying

David Noll: That's right. There's a stat–

Alan Rozenshtein: Right.

David Noll: There's a federal statute, which which makes it an offense to commit criminal contempt. There's a debate in the literature about whether courts need that. Right. There's some courts and some scholars who say that just the grant of judicial power in Article III gives the courts power to punish contempt, but it, it's never been litigated.

Right, right. Because we haven't had a situation where the executive branch has been so defiant towards the courts prior to this. So that's criminal contempt. The key thing about criminal contempt is that criminal contempts can be punished or, or the criminal contempt process can still take place even if the order that was defied is vacated or reversed.

So a lot of times you'll see a situation where, say, you know, a district court will enter a preliminary injunction, and we're seeing this increasingly right, the, the executive branch will defy it or will engage in activity that looks like defiance. And the lawyers will say, hey, what's going on? Right, the court entered an order. Why aren't you following it?

And appeals will be taking place and, you know, maybe six months down the road or a year down the road an appellate court says that, oh, and you know, actually that preliminary junction wasn't entered properly, right? There was some procedural requirement that wasn't satisfied, or, you know, we disagree with the district court's finding of facts or their view of the law. And so, the order that forms the basis for the contempt is vacated.

Criminal contempt doesn't care about that, right? Criminal contempt is about vindicating the court's authority. It is, right, it, it's backwards looking. It's about deterring people from defying court orders. And so, right, there's, there's, you know, established precedent which holds that even if an injunction is later reversed, purposeful defiance of that can be a criminal contempt, right? It can, you know, be equivalent to, to a crime which results in a criminal conviction. And so, right, so courts continue to have that power regardless of whatever happens to the underlying injunction. So, as you mentioned, this paper is about civil contempt.

Why am I talking about civil contempt? Civil contempt is about securing compliance with court orders and right, because of that orientation, you need to have a valid order, right? If the order that's being defied is vacated or reversed, courts lose their power to bring civil contempt proceedings because there's no longer a valid order that the court can compel you to comply with.

So I'm writing about civil contempt for the simple reason that civil contempts cannot be pardoned. And right, when you think about contempt of court in the context of conflicts between the executive branch and the judiciary, there's a very real concern that if criminal contempt proceedings are brought, the president will simply pardon the alleged contemnors.

And that will be that and right pardons aren't reviewable, there's nothing courts can do about it. So sort of the choice to focus on civil contempts in this paper is really born of necessity. It's right, civil contempt is the one tool that courts have that operates independently of the pardon power and that courts can use to compel compliance with their orders without presidential interference.

Alan Rozenshtein: Okay, so let's now get into the levels, basically of what courts can do when they're dealing with executive branch contemnors. So the, the first is a whole set of sanctions, short of arrest. So just describe what those are and, and why you think that they are actually more meaningful and have more bite than I think is, is often viewed.

David Noll: Yeah, so let's start before we even get to sort of true executive branch employees with the lawyers who appear on behalf of the executive branch in court because they are very important players in all of this. Or whenever the administration has defied the courts, right, there are lawyers that, that go into court and either say, oh, you know, your honor, right, technically we're in compliance with your order.

Or, you know, some Dan Deacon and Leah Litman have a wonderful paper cataloging some of the ridiculous things that they've said to try and justify defiance of court orders. But they're kind of the buffer, right? Between officials in the White House or officials in DHS or whatever agency we're talking about, and the court.

And because of that role as the buffer, they are some of the first actors that courts can impose discipline on, or that the courts can impose sanctions on. So that's gonna take the form of things like litigation, sanctions, right? If you don't tell the truth to a court, right? If you, if you misrepresent the facts to a court, if you as an attorney don't provide information that's, that's available to you, that the court orders, there's a range of sanctions that can be imposed against attorneys that eventually lead up to either disqualification to practice in a particular case or disqualification from a court's bar to potentially referral to state licensing bodies which could put your law license at risk.

And the reason that I think these sanctions are important is that attorneys are ordinary people, right? They, they depend on their ability to practice law. Most attorneys who work for the government either wanna continue representing the government, or they want to go through the revolving door and take advantage of their government experience to represent corporations and make a lot of money.

And in order to do that, you need a license to practice law. And right, most times, right, if somebody's gonna retain you as an attorney, they don't wanna see a disciplinary record of the court finding you in contempt of, of the court's orders. And so the courts haven't really explored this option yet, but there does seem to be a range of behavior that DOJ lawyers have engaged in that plausibly puts them within the territory of being disciplined by courts.

And it, again, notice that, right, this is something that's completely internal to the courts, right? You, you don't, you know, sort of attorney discipline doesn't depend on cooperation from the White House or cooperation from the DOJ, right? It's entirely something that happens within the courts, that happens within licensing bodies.

So sort of the first pressure point that courts can, that courts can push on and I think it's a pretty powerful one, is holding attorneys to their legal and professional obligations to be truthful with the court and to comply with court orders.

Alan Rozenshtein: Yeah, I, I just wanna stay on that for a second because I, I think people often forget that lawyers are lawyers first and executive branch employees second. And you know, while they do have ethical obligations as lawyers to, you know, zealously advocate for their client. They have to do so within the bounds of the legal profession, and that is a thing that pre-exists, you know, the whatever executive branch obligations they have.

I mean, I, I'm curious to sort of ask the question version of this. I mean, have you seen situations in which the lawyers are experiencing an actual ethical dilemma between their obligations to zealous advocacy on the one hand to their client and also their obligations, to be honest, to the courts? Or, or is this not actually an, an ethical dilemma that they're experiencing, it's just a professional problem that their client is often dishonest.

David Noll: Yeah. You know, I think that the clearest example we've seen of this involves the conflict between Emil Bove and the prosecutors in the Southern District of New York when the White House was demanding that the righteous prosecution of Eric Adams be dismissed, essentially as a quid pro quo for securing Adam's cooperation with ICE operations within New York City.

You know, there's, there's sort of a very famous series of memos going back and forth between main justice and the SDNY where, you know, Bove takes the position that because of Article II you essentially must do everything that the president says. And you're, you're engaging in insubordination, and, you know, you're, you're violating the Constitution if you're, if you're not prepared to sort of lay it all on the line for the president

Alan Rozenshtein: To be clear, I mean, all of that might be true in the sense that the president might have an article to this or that, and this might be insubordination, but that doesn't actually get at the professional obligation question of the SDNY lawyers as lawyers rather than DOJ employees. I, I guess that's the point I'm trying to get at, if, if, if that's a fair way to conceptualize this.

David Noll: Yeah, I mean, I, I think sort of main justice's view would be that, you know, I have an Article II and the Article II trumps whatever professional obligations you have as an attorney. But you know, that's just not the way the world works. You know, whatever your view of how to read Article II, lawyers have professional duties and those, those might not even be something that you conceive of as legal duties. That's, you know, that might just be something that, you know, this is what it is to practice law as somebody with integrity, and right, and somebody that clients want to hire.

And, you know, what you saw in that episode was right a very clear conflict between, on the one hand Danielle Sassoon and other prosecutors obligation to tell the truth, to pursue what they saw as righteous prosecutions, to not lie to the court, to not misrepresent the reasons that the department was taking actions to the court. And on the other hand, right, this edict coming down from Main Justice that says, you know, Eric Adams is our buddy now let's make these charges go away so that he can use his powers as New York City mayor to make immigration enforcement easier within the city.

And we saw that, where that ended, right? You know, a really humiliating. episode where all of the professional prosecutors right people that you would want to represent you because they're good at what they do and the courts take them seriously, end up dropping out of the case and end up ending their employment with the SDNY.

And Emil has to, you know, take the Amtrak or the Delta shuttle from D.C. to New York and, and right appear in court, in district court as a senior DOJ employee to, to present the motion to, to drop the charges.

Alan Rozenshtein: I think that's, that's fair. But I mean, I mean, just to, let's just push this a little bit because of course he did get on that Amtrak, he did appear, the charges were dropped and you know, as of when we're recording, he is a nominee to be a judge on the Third Circuit.

So in the end, this all seemed to work out for the executive branch. I mean, one could look at this and say, actually, yeah, I mean this caused some attorneys to, to resign. But that actually didn't get at the substantive question of whether or not the threat of professional sanction ultimately prevented the conduct you know, at the end of the day. So I'm curious how, how, how you see, how the whole thing played out for your argument.

David Noll: So this is, yeah, and I think this is sort of what I'm encouraging folks to see is, is that these conflicts are gonna be messier and have less of a clean resolution than we might expect.

And, and I think sort of the Eric Adams episode is a really nice example of that because the career prosecutors, you know, didn't get what they wanted as a first order matter, right. You know, their view certainly is that, you know, Eric Adams deserved to go to trial. And that a, a jury in the SDNY should make findings about his corruption and all of the things that they, that they alleged in the indictments.

Main Justice's view was that the indictment should be dismissed without prejudice so that it could, you know, sort of hang over Eric Adams’ head if he wasn't sufficiently enthusiastic when he went on ‘Fox and Friends’ about ICE operations in in New York City. And, you know, we had this, you know, this big conflict, we had dueling memos. We had, you know, on the one hand the president asserting his authority, on the other hand, career prosecutors saying, wait a second, we're lawyers, we can't lie to the court.

And the resolution is kind of in between, right? The, the charges are dismissed with prejudice. And so just in terms of the concrete litigation outcomes, the White House did not get what it wanted, which was to be able to have this sword that it could hold above Eric Adams’ head if he wasn't sufficiently enthusiastic about helping out ICE at the same time, you know, the career prosecutors didn't get what they wanted.

And so really sort of, you know, what, what the episode did is, you know, it, it, it prevented both sides from getting what they really wanted. It, it was tremendously embarrassing to do DOJ and, and Bove. I think, you know, even if he somehow gets appointed to the Third Circuit, I think he'll always have an asterisk next to his name based on his willingness to serve as Trump's henchman.

And so, you know, the way I see it is that, you know, here we're talking about an intra executive branch conflict, but this is sort of the way that checks and balances are supposed to work, right? Checks and balances don't mean that everything is always gonna be great and we're, you know, we're always gonna have an executive that complies with the rule of law, or, or what the law requires according to your best view of what the law requires.

It means that these conflicts are gonna be fought out and that you're gonna see different sources of a, authority using their influence, using their power to fight for what they're, what they think is right. And then sort of the essence of a separation of power system is that when that happens, when you have people with conflicting incentives and different loyalties, that's good for the rule of law, that's good for, for liberty and the, you know, sort of the continued functioning of the constitutional system.

Alan Rozenshtein: Okay, so that's the lawyers. Now let's talk about the government employees, because in your paper you note that courts have a variety of ways of punishing non-compliance, they can deny qualified immunity. So just, just talk about how that works and, and also, you know, how in particular the qualified immunity part would intersect with things like the Westfall Act?

David Noll: Yeah. Before qualified immunity let me just, I, I do wanna mention sort of the most basic tool that courts have available when it comes to executive branch employees that, that I think is going underused, which is just the ability to order people to testify.

There is an incredible reluctance to come to court, get on the witness stand, swear to tell the truth and nothing but the truth. And we've seen several cases where the trigger for compliance with a court order wasn't these sort of nuclear sanctions that we talk about, including stripping, qualified immunity and so forth, but was just right a, a totally routine court order to testify.

So we, we might say you, why are executive and branch officials so afraid to testify? Well, one risk is that they'll perjure themselves. And you know, another risk is that an executive branch official appearing in court and testifying is something that acts as a focal point for the media. So right, if, if you're the director of the Office of Personnel Management and you're testifying, that's gonna be a hearing that attracts attention to what you're doing.

And if, you know, if there's one thing we know about the executive branch, it's that the media, which these days includes you know, sort of our balkanized social media environment is sort of one of the main constraints and one of the main drivers of what they do. So there's that.

But let's talk about qualified immunity. So, we could assume that sort of somebody is not complying with an order to testify or that they testify and the court isn't seeing the compliance with an order that it wants to see. The suggestion in the paper is that when that happens, right, when, when the court has given an executive branch official the opportunity to comply with an order and given them an opportunity to explain themselves and that we still don't see compliance, the court can make findings that the official is violating clearly established law.

Alan Rozenshtein: The law here being the judge telling them, here's what the law is, please comply.

David Noll: Exactly, right. Now for people who aren't up on their qualified immunity doctrine, right? That phrase clearly established law or, or acting unreason in some formulations makes a difference because, right, that's the predicate for immunity, right?

If, if you are a government official and you can say, look, the law was uncertain. You know, I, I didn't really know what to do, or the facts were in flux. And so even, you know, even if I violated the law, or even if I violated the Constitution, I made a reasonable mistake. Qualified immunity is an incredibly strong doctrine, which essentially blocks ordinary tort lawsuits where people who have been injured by constitutional violations seek compensation for that.

So the suggestion is that when somebody is standing in defiance of a court order, one of the moves available to the court is to say, look, you're violating, clearly established rights. Normally we would, you know, we would worry about does this person have noticed that the work doing what they're doing is illegal? Do they, you know, have they, have they been given, given a chance to come into clients with law?

When we're in this contempt posture, the court has said, look, this is what the law requires. And the court has issued an injunction directed at a specific official that says, do this because this is what the law requires. And what the paper argues is that in that circumstance, if you still don't see compliance, the court is justified in saying you are violating, clearly established law, which has the effect of stripping your entitlement to qualified immunity and essentially putting you in the position of an ordinary person when it comes to tort litigation.

So, you know, the way this, this would play out is that, you know, there would be sort of cascading proceedings. There'd initially be contempt proceedings where an official's compliance with clearly established law was at issue. You know, and, and the court would finally get fed up and say, look, you're violating, clearly established law.

What would happen after that is that there would be a second lawsuit filed seeking damages for the violations of con of constitutional rights. Those are ordinarily very difficult to win because of qualified immunity, but here would be in a posture where the original court and would probably go to the same court under, you know, depending on where the second lawsuit was filed, would say, going into that tort lawsuit, there's no immunities at issue, right. There's no qualified immunity at issue. And so the only question is was there a constitutional violation and what damages are the plaintiff entitled to by reason of that, that that violation?

So that is, you know, this is getting kind of speculative 'cause we just don't have a lot of litigation like that these days. Again, because you know, until January 2025, there was a, a super strong norm of compliance with court orders. But that is, I think, you know, something that even, you know, fairly defiant executive branch officials should worry about is sort of the prospect of being named a defendant in a tort lawsuit where they're not able to take advantage of qualified immunity and use that as a shield against the imposition of damages.

Alan Rozenshtein: Why can't the government nevertheless come in under something like the Westfall Act, which correct me if I'm wrong, allows the government to come in and replace basically itself as the defendant in, in a tort suit and just say, well, we just, you know, fine, you think he doesn't have qualified immunity because he was mean to you, your honor, but we don't care. We're gonna indemnify him anyway.

David Noll: Right. Yeah. So, the Westfall Act is a, a very messy statute. I'm not gonna try and cover all of the details of Westfall Act’s substitution here. The key limitation on the government's ability to substitute itself for a defendant under a Westfall Act is that the employee was acting within the scope of his duties. And so, you know, there was some litigation surrounding this when you know, sort of Trump was involved in defamation trials.

Alan Rozenshtein: This is the, the E. Jean Carroll litigation

David Noll: Right, yeah. And at one point, under Biden, DOJ made a determination that the sort of, the stuff that he was saying wasn't part of his official duties as president.

And so the, the line of reasoning, and, you know, I, I really don't know where this would end up, but sort of the line of reasoning would be that when you are defying a valid injunction, which is to say an injunction where the court has jurisdiction over, over the case in a, an injunction where the court has jurisdiction over the parties. That's just not the way that federal executive branch employees carry out their duties.

And sort of in support of that argument, you would say, look at the history of sort of judicial-executive relations up until January 2025. Right there, there is, there's, we just don't have a history of executive branch officials define the courts, particularly when they've been given opportunity after opportunity to compl, come into compliance with court orders.

And so a, a court is gonna be the one that makes the determination whether the government is entitled to substitute itself for an individual defendant named under the Westfall Act. And notice, you know, sort of if we hypothesize that a tort lawsuit is brought in the same court that found an official in contempt, this is gonna be a court which has already found that an official is in contempt, an official is violating clearly established law.

And so, you know, I, I think there's a, a realistic possibility that, you know, if you get the judge on the wrong side and the judge has built a record of non-compliance, that a, a court could say, look, this, this is really so extraordinary that, you know, when you're hired as a, as an official at the White House or a DHS, you know, part of your job description is not to defy the courts. That's, that's just not the way it works here.

Alan Rozenshtein: What about private indemnification? So you can imagine a political campaign or a rich donor to the president, or in the case of someone like Trump, who is extremely wealthy at this point, the president himself saying, you know what fine, I understand you're gonna be held in contempt. We're not gonna be able to give you immunity, but I promise to just cut you a check for whatever the, the, the amount is.

David Noll: Yeah. So, you know, there's two pieces to this, a legal piece as well as a, a more practical how would it actually work piece. The legal piece, Nick Parrillo who, who wrote a, a fantastic study on contempt in administrative law cases, has done the research and his view is that as part of the contempt power courts have the authority to prohibit indemnification of civil contempt fines.

And so for the, you know, you know, sort of my advice for courts who find themselves in the position of trying to get executive branch officials to comply with their orders is, you know, of course to study Nick's article 'cause it's, it's a wealth of information about sort of the practice of contempt and how contempt cases proceed, but sort of particularly his cites about, you know, court's authority to prohibit indemnification.

And so just legally, right, a, a court can say, because what I'm after is compliance with my orders, and because indemnification can interfere with that, as part of my exercise of the contempt authority, I can enter an order which says, this fine shall be paid personally by the condemner. So if a court does that, and if that order, you know, holds on appeal, then we're in a situation where just as a legal matter, contempt fines can't be indemnified.

And you know, so for people who haven't sort of seen how these contempt cases play out, I should, I should probably mention sort of the standard order when a court is imposing fines, we'll, we'll say something like, you know, for every day that you don't comply with the court's order, you know, you're fined $500 or, or $1,000.

So that, that's variant one, which, you know, we're talking about, you know, executive branch officials particularly, you know, if we're outside the highest policy making levels, you know, who may, you know, just be earning a government salary and not, not really have the ability to pay fines that, that reach a couple thousand dollars a month.

But in sort of another kind of order that courts enter is a constantly escalating fine. So if, right, if you don't comply with my order by Monday then there's gonna be a fine of $500. If it's not complied with by Wednesday, it goes up to a thousand dollars. If it's not complied with by Friday, it goes up to $2,000 and, you know, it increases geometrically.

So these fines can be quite substantial and sort of even if we assume that there's gonna be some kind of indemnification, say Trump for example, Trump actually has to cut the check, right? He has to cover an official's costs that result from defying a, a court order.

And particularly if we're in that second situation where, where fines are increasing, you know, with each period of non-compliance, we're potentially in a situation where, you know, sort of even, you know, even to someone like Trump, you're talking real money and right, you know, sort of the ability to pay to not comply with the court's orders may be really unattractive if, if you're looking at millions or tens of millions of dollars of fines that result from prolonged non-compliance.

Alan Rozenshtein: Alright, so now let's turn to what happens if none of this works. And you have to, you have to call in guys with guns. Okay? So let's talk about the marshals. So I, I think your paper is fabulous for so many. Reasons. But one of my favorite is that I think I finally understand who the marshals were, which I always had just like this very, and I, I, I suspect I'm not the only one who like has just this very vague sense. So who are the marshals and who do they work for?

David Noll: Right. So, I, I clerked in district court and as you say, I, I remember the marshals as you know, like very physically fit guys who would bring in defendants from custody for, for, for court appearances. And, you know, they, they were, they were literally the muscle that was that was protecting the court. 

Alan Rozenshtein: That's so funny. 'cause I, when, when I clerked, I, I clerked in a, in a, a circuit court and we did not, I, I don't remember if we had it even district court in the, in the building, but the marshals that we had were very chill, somewhat elderly individuals who would like wave you through the metal detectors and like chat with you about the weather. It was a very, I think it was a, a different set of marshals at the courthouse where I worked. They were lovely people.

David Noll: Well, no, this is, there's actually a serious point here, which is that the marshal service is a large bureaucracy. It does a lot of stuff. It contains a lot of different people and it performs, right, a number of different functions.

So, you know, the very short version is that the marshals are the oldest federal police force right. They're, they're recognized in the first Judiciary Act from 1789. Sort of, you know, back in the time of the first Judiciary Act, there was just one marshal who was a government employee for each judicial district. The marshal would then hire deputies who were private citizens, who had, who had helped the marshal carry out his duties.

The marshal's first statutory duty is to carry out right process of the courts, right, essentially to enforce court orders. And that's been the case going all the way back to when the marshals were first established. But as tends to happen in government, Congress has piled on duties to the marshal service and assigned them, you know, lots of other stuff that they're supposed to do.

So, in the 19th century, the marshals do a lot of federal administration. So, you know, sort of, they do some work administering land grants. They do some work administering the census. You know, they're sort of an early administrative agency simply because they're the face of the federal government particularly out West. And right, there's not, you know, you don't have, you know, government agencies with buildings set up and, you know, customer service centers and all the stuff that we're accustomed to today.

As we get closer to, you know, to the present day that the marshals are assigned the responsibility for apprehending fugitives. So, you know, see Tommy Lee Jones and you know, that that side of the U.S. marshals. They handle asset forfeitures. They handle right security, right? And so, right. The, the marshals are this, you know, sort of this, this sprawling law enforcement bureaucracy where enforcement of court orders these days is only a part of what they do.

They provide courthouse security. They, you know, they do the, all this, you know, this other kind of stuff for the federal government. But if you dig into the statute that says what the marshals are supposed to do, enforcing legal process right, is still the primary duty of the marshal service. So the, the marshals exist in order to carry out process of the United States, which of course includes enforcement of court orders.

Alan Rozenshtein: So how, how does then the chain of authority works, right? Because the marshals have two bosses. So just, just explain kind of like, just as at an org chart level, how the marshals answer up through the federal judiciary, but also answer up through the executive branch and on the executive branch side, like who appoints them, who fires them.

I mean, how, how does that work? Because like this nitty gritty, which almost never matters

David Noll: Yep.

Alan Rozenshtein: Becomes extremely important suddenly if you have a, a standoff between the courts and the executive branch.

David Noll: Yeah. Okay. So there is so the mar-. There's a, there's a U.S. marshal for every judicial district, and then there is, there's a director of the marshal service and some sort of some administrative staff that work out of D.C. There's a general counsel, which will be very important if we ever get to the point where the courts and the president are fighting about enforcement of a contempt citation. So there's sort of the administrative part of the marshal service.

But then and people have criticized this 'cause it's, it's not the most efficient way of setting up a bureaucracy, but you have a, you continue to have a U.S. marshal for every judicial district. The marshal is appointed by the president with the advice and consent of the Senate. The marshal appoints deputy marshals. Deputy marshals have some civil service protections. The details of this on this, I'm not actually completely sure of, but they're not directly removable by the president so far as I understand.

Right. They're, they seem to be, I'd welcome hearing from people who know more about the, the regs on this than I do. But they seem to be protected by the ordinary civil service protections, right? Where there has to be cause to remove a deputy marshal from office and you get a chance to go before the Merit Systems Protection Board to argue that you were improperly dismissed.

And so, right, so we have this, right, this, this bureaucracy, which is, which is spread out over all of the judicial districts. And sort of you, if you dig into the statute governing the marshal service, right? It says their primary duty is to right, enforce right, right legal process of the courts.

But then it says, and, and this is why people talk about the marshals having two bosses. It says, the marshals shall operate, you know, under the direction and control of the attorney general. So, and this comes out of a Civil War-era that first gave the attorney general basically managerial authority over U.S. attorney's offices and the marshals.

So the idea is that, right, the attorney general has oversight authority, right? You know, make sure that the marshals are paying their bills on time and you know, hiring competent people and administering all those aspects of the business side of the marshal service. But then, right, the statute continues to talk about, or what are marshals supposed to do? And the first thing we know from Congress is marshals are supposed to enforce court process. So you're supposed to enforce court process within a structure where everything happens under the oversight of the attorney general.

Alan Rozenshtein: So what then do you think would happen? Or what, what could happen–cause obviously there's a range of possibilities–if you have a situation where the marshal is, is getting, you know, Mommy and Daddy are fighting, right?

Like one boss is telling the marshal, hey you know, go arrest this guy because he's, you know, in contempt. And the other guy is the president saying, yeah, but the guy you're trying to arrest is the attorney general or whatever,

David Noll: Right, right,

Alan Rozenshtein: Or just an executive branch official. And, and, and don't you dare do this because I will fire you or whatever the hell happens. So like, what, what happens in that situation?

David Noll: So everything is gonna depend on the U.S. marshal for the judicial district where a court enters an order for the arrest of an executive branch official. So say, you know, say that we're in the District of Maryland and in one of these immigration cases.

The judges get fed up and say, you know, look, I've, I've given you opportunity after opportunity to comply with my orders. I, I've tried finding you, you know, that didn't work for whatever reason, you know, I've tried referring the attorneys for discipline that that didn't work. I've had it, you know, so-and-so is responsible for defying my order. I'm ordering their arrest.

So the, the first step is just, there's an, the entry of an, of an order to that effect. And so the court will write an order that says the U.S. Marshal Service is directed to bring so and so into custody. The court might issue this delightful old writ called a writ of bodily attachment, which is just what it sounds like.

Alan Rozenshtein: That's good. I've never heard of that one, that’s a good one. I think I heard that. I think I heard that band in college, ‘Writs of Bodily Attachment.’

David Noll: Yeah, there's, there's a lot to un, unpack there. But it's, you know, just, just sort of like, you know, you might attach real property. This is, you know, bring this person into court and hold them into custody, and that's directed to the Marshal Service.

So, okay. So the marshal for a district, you know, say the marshal for the District of Maryland, or, you know, for D.C. or, or you know, Virginia or you know, Northern District of Virginia, whichever court is entering this order. They then have to decide what to do. So, you know, one scenario is that the president just stays out of it, and that's an easy one because the marshals have a, you know, a statutory duty to enforce court process.

I imagine there would be some extremely delicate behind the scenes conversations to the effect of look, the court has ordered that so-and-so be arrested. You know, we don't feel great about it, but we have to bring him into custody and then, you know, we'll, we'll let the lawyers handle it and see if so-and-so can purge himself of, of contempt.

The other possibility, which I think is much more likely is that the White House would go to war with the courts. You know, every, you know, every week the White House is, is, is putting out inflammatory messaging about how the courts are out of control—only when it loses, of course—and something has to be done about rogue district court judges.

And so I think the more likely scenario is that were a court to issue an order for the arrest of an executive branch official. You would see Trump or one of his surrogates say no, we're not, we're not gonna comply with this, right? It's our executive branch, it's my Article II. And you know, if the marshal chooses to abide by this order, you know, they're out of a job.

And you know, many, many worse things will happen to them because they'll probably get doxed, their family will be harassed and threatened and you know, who knows what else will happen to, to the marshal?

So put yourselves in the position of a marshal, right? That right, the marshal for a district is the one who is responsible for, you know, picking the deputy, right, assigning somebody to carry out this order. If Mom and Dad are fighting, that person needs to ask themselves what is, what is their legal duty? And, you know, they'll probably get advice from the general counsel to the Marshal Service.

In the paper, sort of, I sort of I run through, you know, you know, as, as quickly as I can, sort of the legal arguments for why the president would claim authority to have the power to call off the marshals. In my view, they all border on the frivolous. There, there's not really a, a strong argument that the president has authority to call off the marshals.

But the marshal right will, will surely know that if he or she orders the court's order to be carried out, they're probably gonna lose their job. At a minimum life is gonna suck because right, a, a whole bunch of people within the Marshal Service and a whole bunch of people in the White House and Fox News and, and Twitter and, and that entire universe is gonna be very displeased with what's going on.

So, you know, I'm a law professor obviously. You know, I don't have the answer to how a marshal is going to respond in that situation. I, I think it's probably very dependent on sort of the politics of a part of a particular case and how many opportunities the executive branch has been given to come into compliance with a court order.

One thing that, that I'd note sort of after spending some time with the history of the Marshal Service, you know, and this goes back to Tommy Lee Jones. There is this, you know, this, this almost macho ethos of, we are the marshals and you know, like we're not here to enforce, easy to enforce court orders. I like, our whole thing is that like, people are defying the courts and people are defying the Constitution and, and we're the muscle that, you know, that brings them to account.

Alan Rozenshtein: It's like, it's like the platonic ideal of the law man, right?

David Noll: Yeah.

Alan Rozenshtein: Like you really are.

David Noll: You know, like if you go to the marshals website, you know, and like go into their historical reading room, they, you know, they've got, you know, pictures of the marshals helping to integrate the University of Mississippi, you know, accompanying Ruby Bridges.

Like this is, this is, you know, it, it's complicated because, you know, law enforcement in general tends to have a lot of sympathy with, with the MAGA movement and a lot of sympathy for Trump. On the other hand, where the marshals, like their whole shtick is enforcing difficult to enforce court orders.

And so, you know, you can sort of, you can imagine that playing out where they say, you know, where a marshal sees this as a continuation of the righteous tradition of enforcing the Constitution and enforcing legal process against people who are who are committed to defying it and in this case, defying the courts.

So, you know, that that's, that's the, the choice for the marshals. It's anybody's guess what a particular marshal is going to do. But, you know, sort of what I hope comes across is that like, you know, to say that this is just like, you know, is gonna be an easy choice 'cause the marshals, you know, you have to submit budgets to Pam Bondi. And, you know, you know, are under the supervisory authority of the attorney general is ignoring these sort of, these other aspects of the marshal's culture and all the other things that are, that are gonna be at play in a showdown between the Marshal Service and the executive, or a showdown between the courts and the executive.

And so it's, you know, sort of figuring out what the gaming out, what the marshals are gonna do is, you know, I think a lot more complicated than, you know, just saying, oh, the, the marshals are within the executive branch, end of story. The executive branch, you know, at the end of the day, can, can do whatever it wants in response to court orders.

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[Main Podcast]

Alan Rozenshtein: So let's imagine that unfortunately the marshals cave, they go along with the executive branch. So now it's a really, it's a really bad situation, but you argue that the courts still have sort of one lever to pull and that is to appoint their own deputies, basically go out and just find someone.

So just describe this deputization power, like where it comes from and there are a lot of historical precedents. But I wanna focus on the one that you spend some time on. And that is one of the most famous cases actually in all of American history, Ex parte Merryman.

Explain, just use that case to give sort of a, kind of example of, of how this might, this might work and, and, and what the historical precedent, and, and in particular, how Merryman ended up, how that changes your views of, of just how plausible any of this is.

David Noll: Okay, so, the marshals have said, look we'd love to enforce your order, but I'm gonna get fired if I, if I do that. So the courts are, are, are stuck. The last part of the paper is, is trying to recover this, this historical tradition of courts appointing independent deputies or, or deputies that aren't part of the federal executive branch to enforce their orders.

So this really, it comes out of looking at the way that the federal judiciary worked in the 19th century, sort of before we get into the modern era of the federal court. So remember at this time, you know, sort of the federal government, you know, sort of if we're dealing with, you know, westward expansion, might consist of say a post office, a single district judge or a single circuit judge, a U.S. marshal, and that's it.

You know, you know, and they might all be, you know, sort of in, you know, some very tiny little federal building that is, you know, that's rented from, you know, from the general store in, in Nevada or, or Oregon or whatever you, whatever have you. And, and so right in this earlier period of the federal courts, we have this tradition of the courts fairly routinely looking to other actors to enforce court orders. And that's totally born out of necessity. It's because we don't have a 6,000 person Marshal Service that can carry out the court's orders.

So, the first thing that I point out in the paper is that sort of the legal authorities that underpin court's ability to appoint deputies and to enlist deputies were never taken off the books, right? So the courts, you know, have authority under the All Writs Act there's a provision of the Federal Rules of civil procedure that I get into that seems to contemplate the appointment of deputies. There are folks that have suggested that Article III gives courts the authority to appoint deputies to enforce their orders.

We don't have a lot of experience with this because again, prior to January 2025, the norm was executive branch compliance with court orders. But there's sort of this, this vestigial power to appoint deputies to carry out court process even against the executive branch. Okay, so how might this work? That takes us back to Merryman which is a, a conflict from the beginning of the Civil War.

The short story is that there's a lot of confederate activity in Baltimore. Baltimore is really important because D.C. is kind of an island in the middle of confederate sympathizers and Union supply line lines and Union telegraph lines run through Baltimore. The Union Army goes into Baltimore. Lincoln issues an order to his generals to arrest Confederate sympathizers.

He also says, by the way, you have the authority to suspend the writ of habeas corpus, right? Which is the ancient common law writs that courts use to examine whether people are being detained lawfully. Merryman is detained by the Union Army. The Union Army gives him access to a lawyer, and he files a petition for habeas corpus before Roger Taney, who happens to be, there's a dispute about whether he's actually the circuit justice or whether he just has chambers in Baltimore, but he's, right, he's the local district judge for Baltimore.

And Taney issues a writ that says, right at the time you had actually produce the prisoner so that you could figure out whether he should be detained. He said, produce Merryman on, on a writ of habeas corpus. The marshal goes right to the to the fort where Merryman's being held and says you know, I have this writ, please produce Merryman. You know, the, the judge has ordered and is, you know, given the thanks, but no thanks.

And so he returns to court empty handed. Taney, right then issues another writ for the attachment of the Union general who refused to produce Merryman, that is not enforced. He goes back, and then we give this, right, the long opinion that everybody reads in law school where, where Taney is reacting to the fact that Merryman was not produced as the court has ordered.

So there's two really important points in this episode sort of for thinking about present day conflicts. The first is that Tawny, sort of rather casually assumes that the marshal had authority to summon up posse comitatus to, to physically secure Merryman and, and bring him in bring him before the court so that the court could examine the lawfulness of his detention.

He points to a provision in the first Judiciary Act that, that allows the marshal to summon a, a posse comitatus. And so, sort of the suggestion is and, and this is like, he doesn't even spend a lot of time on this in the opinion. It's just, you know, it, it just, it is the way that courts worked in the 19th century. He says, he says, well, look, you could have summoned a posse and you could, you know, you know this posse of ordinary, you know, men at the time would've, would've helped you, right, obtain Merryman.

But then he does something, which is sort of a remarkable exercise in realpolitik, he says. But obviously if you summoned a posse, the posse would be going above against the, you know, the Union Army, which at the time was extremely well equipped, was organized, were at the beginning of the Civil War, they had a lot more firepower.

And so he says, look, given that the Union Army had the advantage in firepower, your duty to enforce the court's process is excused, right? Ordinarily I would require you to enlist the assistance of private citizens to, you know, to help carry out my orders. But, you know, given that you're gonna lose a battle a, a standoff with the Union Army your duty is excused.

So, I, you know, I think that that's the basic template for how one of these modern day conflicts will unfold. You know, if we imagine the marshals standing down, you know, a court does have legal authority to appoint private parties. It could be, you know, I talk in the paper about special deputy marshals.

There's apparently thousands of these people who have been deputized who don't work for the Marshal Service, but have the authority to carry out arrests and do other marshal’s functions who might, might be employees of other federal agencies. Court could appoint local law enforcement.

So the court, I, I'm fairly confident, has legal authority to appoint deputies, but then the question becomes what are they gonna do, right? What, you know, what shows up or, or sort of what happens when one of these deputies show up at, you know, the condo of some underling of Stephen Miller and says, you know, you're required to come with me because the court has ordered your arrest,

Alan Rozenshtein: Especially if, if the executive branch has sent the marshals to protect the underling. Right, I mean, at some point you have a situation where you have executive branch, you know, enforcement and private citizen shooting at each other. I mean, this is the nightmare scenario, right?

David Noll: Yeah. Yeah. I guess I should have said, even before the court appoints a deputy, we are so far into a constitutional crisis that you know, sort of the wheels are coming off the car in all kinds of expected ways, unexpected ways. You know, complying with court orders as part of our legal culture. It's, you know, it follows from the judicial power in, in Article III. You know, it is just a basic aspect of constitutionalism in the United States.

So when you start messing with your compliance with court orders, you're introducing uncertainty into the system in a way that I don't think anyone can really game out because-

Alan Rozenshtein: We have, we have bigger problems at this point, is what you're saying than whether this or that marshal is doing this or that job.

David Noll: Yeah, I mean, you know, as an academic I think about it, you know, you wanna talk to the guys who specialize in failed societies and in coups and in, you know, sort of armed insurrections and stuff like that 'cause they're the ones who really have a read on this. So if, if the marshals are defying a court order, we're already in that world, right?

Because we, cause law doesn't mean what we expect it to mean. And so one question is, right, if, if, if law is no longer a thing, do the marshals care that there are missives coming from the White House that say, do this or you'll be fired. They might say lol, right? This is all a joke, right?

Like this is, you know, sort of like the, the order is falling apart. We're gonna do what we think is right or we're gonna, do, you know, what we think, you know, best protects our office or you know, you know what, what accords with our sense of justice. So, I mean, just to underscore, we are in a really bad, really chaotic place.

But assuming the Marshalls continue to follow or directions from the White House or from the attorney general, then yeah, then you're in a situation where you might have say members of the D.C. police or members of the Maryland police who go to arrested executive branch condemner, and there's an attempt to interfere with that, that is being sort of orchestrated by the White House or orchestrated by the attorney general.

So, you know, that is, as you say, that's, that's a hot conflict, right? Because you have one group of people with guns saying that somebody must be brought into court. You have another group of people with guns saying that you know, the person should be insulated from court process. I don't know the answer to how that's gonna play out, right.

Well, you know, I, I can imagine a sort of a court that acted very strategically and in a savvy way doing all this fast enough that the White House was really caught flatfooted. Sort of think of, you know, sort of think of an inversion, if you like, of the, the El Salvador rendition flights where everything was organized ahead of time and the courts didn't have an opportunity to review the legality of the flights before people were deported under the Alien Enemies Act. If the pieces fell into place, I could see, you know, at least temporarily an executive branch contemnor being brought into the custody of the courts.

I can also see it going the other way, right? I can also see, you know, sort of, you know, federal law enforcement agencies that are sympathetic to Trump or sort of sympathetic to mass deportations, rallying, and, you know, recreating a Merryman situation where it's practically impossible to get access to somebody that the court has ordered be brought into the, into its custody.

But, you know, sort of continuing with the theme of all of this being messier and weirder than people are giving it credit for. Just, just think for a second about like how extraordinary that would be, right? You have sort of the deputy undersecretary for Homeland Security or whoever subject to a court order, right, not able to go anywhere without a bunch of SUVs, you know, trailing him or her around ensuring that they're being protected from court process.

Even that's gonna make it hard to do your job is gonna, you know, you know, sort of, you know, create a media spectacle to create this, this sort of extraordinary situation. And so, again, we see sort of, you know, even at the end of the day, if the courts can't, you know, if the courts aren't gonna win sort of a battle of guns, they do have this ability to, to, to escalate the situation. They have the ability to drag it out.

And, you know, sort of one of the things or that I was trying to accomplish in this paper was sort of encouraging courts to see that. Encouraging courts to say that, look, this isn't just up to the executive branch, you have tools that are available to you. You know, nobody wants to see a hot conflict. Nobody wants to see, you know, different police forces in a standoff over whether a contemnor will be brought will be brought into court.

But it, at the same time, it's, it's a little funny to see people proceed on the assumption that the courts are totally powerless and that, and the courts don't have any ability to, to continue the conflict and to escalate it.

Alan Rozenshtein: So before we conclude, I, I want to zoom out for, for a second. The first thing I wanna ask is what the role of the Supreme Court is in all of this, because we've been having this conversation largely at the district court level, right?

You have a proceeding, you have a district court, the judge is pissed, and the judge then does a bunch of things and, and that causes other things to happen. And I can easily imagine district court judges, you know, getting very frustrated. I could even imagine an appellate court upholding some of these aggressive enforcement actions on the part of the district court.

But at the end of the day, it's gonna end up at the Supreme Court, certainly if, if this is a high profile conflict and, you know, look, it's a six three conservative Supreme Court. Now, I'm not such a legal realist that I just look at, you know, the political party of the, of the president that appointed the, the justice and say, okay, well that's how it's gonna go. And, and I, I think that you can look at the Supreme Court and you can see ways in which they have not just done that.

You can also get the Supreme Court and, you know, we're recording this a few days after the opinion of the universal injunctions case came out. And that's obviously, again, there's a very complicated opinion, there's a lot going on there, but, you know, you could look at that quickly and say, oh, it's, you know, yet another example of the six quote unquote, you know, Republican appointed judges ruling for the Trump administration against the three quote unquote Democrat appointed judges.

So how, how confident are you that in a righteous case of trying to make a contemnor, you know, actually do the right thing, the Supreme Court will ultimately back up the, the pissed off district court judge.

David Noll: So I think what you're gonna see is the Supreme Court trying to act as a mediator between district judges and the executive branch.

And, you know, sort of the, the, you know, the proceedings around Abrego Garcia are, are a really nice example of that. You know, sort of we start with a district court order to what is it effectuate and facilitate his return to the United States. We get a bunch of arguments about, you know, OMG, you're telling the executive how to conduct foreign affairs, that's, you know, that's, that's beyond the power of a court. And so that gets watered down to an order to facilitate his return to the United States.

But notice that, that was a 9-0 order, that was Clarence Thomas and, you know, Neil Gorsuch and Sam Alito saying that there was an obligation on the part of the executive branch to comply with the district court order to facilitate Mr. Abrego Garcia's return. So, you know, I think that the court conceives of itself wrongly, in my view, as the adults in, in the room.

I think it, it sees district courts that are strongly asserting judicial power and trying to secure compliance with court orders. And I, I, I think sort of the posture the court takes is you know, we got, we gotta tap the brakes, we gotta, you know, be mindful of the role of different branches of government. And so, you know, sort of the pattern I would expect to see is the court walking back, if not nullifying a lot of the stuff that district courts are doing.

At the same time, you know, sort of as you say, you know, sort of, I think that even with this Supreme Court and even in matters that affect executive power law does matter, right. The, a unanimous court could not stomach the idea of someone being rendered to indefinite detention in El Salvador. And issued, I think was the sort of the strongest order that the court thought would have a chance of being complied with.

And so, you know, in my view there's a lot of wisdom in district courts and, and the Supreme Court should be a lot more deferential towards judges who are actually hearing evidence. But sort of, you know, even sort of, if you take the Supreme Court's self-conception of itself as the, the adults in the room who have to walk back some of what district courts are doing, I, you know, sort of, I don't think it's a foregone conclusion that they will simply go along with whatever the executive branch says.

And, and part of that, you know, you know, just to sort of, you know, close the loop on this stuff relates to the defiance of professional norms that we've seen in district court litigation, right. There, there have been misrepresentations to courts, there have been failures to comply with court orders. Some of that, you know, the SG is able to spin as district courts being overly aggressive, but some of it is just completely lawless.

And, you know, the justices and their clerks look at the records in these cases and that, you know, they, they know what's happening in, in lower courts. And, you know, as members of a legal profession, as the head of Article III, I would hope that they feel some obligation to vindicating judicial authority and to maintaining a separation of power system rather than just going along with the executive.

Alan Rozenshtein: So let's close on, on this question. So I could not decide whether your article was making me more optimistic or less optimistic about the rule.

David Noll: That's what I look for in scholarship. Just confusing people.

Alan Rozenshtein: Because, because on, on the one hand, it's an extremely persuasive case for the existence of a whole set of remedies that while not a hundred percent effective, are definitely more effective than the kind of doomerism that you get or that I think we've has recently been expressed in our profession.

On the other hand, the fact that you had to write this paper is not a good thing, right? The, the fact that someone had to sit down and be like, well, I guess the marshals, and even if the marshals don't do this, we can like get some private guys with guns.

And so I'm just curious, and I'll just ask for your just personal sense, right? Having written this paper, having spent, you know, the last hour and a half talking about it, are you feeling more optimistic or less optimistic about the rule of law in this country?

David Noll: You know, Jack Rakove put out a piece in Washington Monthly, which I really appreciated, which was sort of making the case that we've moved beyond constitutional crisis to a, to a form of constitutional failure. And I, I thought a lot of the stuff that he said was, was quite persuasive, just sort of looking at how the basic checks and balances of the constitutional system are supposed to function.

I guess that that's my general orientation, looking at these kinds of things, but sort of the optimistic thing that I'll say is that to say that we're in a state of constitutional failure, I think isn't the end of the rule of law. I am, you know, among people who think that, you know, we weren't really operating under something that deserved to be called a democracy until the, the, until the 1960s. And yet there was there was rule of law, right?

There was, you know, there was, there was some legal orders that, that were followed, right. You know, sort of the practice of conducting government according to constitutional principles was taken seriously even as it was seriously challenged.

And so I, I guess where I see us is sort of in this moment of extreme tension where a lot of the system isn't working the way it's supposed to be working, but, you know, clearly, you know, like I can go to Whole Foods and, you know, my credit card works and, you know, we're, we're not a failed state in that sense. And I, so I, I think sort of, and this has really sort of been a tough thing for myself as, you know, as, as a law professor and as a legal scholar is 'cause we're used to the assumption that we're working within a sort of a fully functional system.

And people who study sort of criminal justice or, you know, sort of transitional democracies will tell you, well, well no, that's not really the case. Right. We're always somewhere between full rule of law and complete societal breakdown. And in my view, sort of, we're in one of those spaces now, right? Right.

Features of the constitutional system are not working the way that they're supposed to, but at the same time, there's still space for legal arguments. It's, it's still, you know, seen as subversive not to comply with court orders. The Constitution, you know, due process, separation of powers, these concepts continue to have just a really strong intuitive moral force.

And so, you know, I think sort of the challenge for lawyers and for courts is, is both to be realistic about where we're at, but then to understand how legal process and the moves that are available to courts and lawyers can move us in the right direction towards a federal government that is, you know, more firmly operating according to the rule of law.

Alan Rozenshtein: I think that's a good place to end. Thank you, David, for the excellent paper and for this great discussion.

David Noll: Oh, likewise. Thanks for the discussion.

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