Unelected billionaire and ghost Cabinet member Elon Musk has for weeks been advocating for the impeachment of federal judges who defy his government ransacking crusade. Just last night, he posted on X at least six times speculating about ways to retaliate against the federal judiciary.
Donald Trump’s Vice President JD Vance also has a history of remarks about the possibility that a Trump-led administration might someday need to ignore a judge’s order. He, too, recently posted on social media suggesting that a federal judge had no business stepping in to temporarily halt some of the Trump administration’s early moves blocking congressionally allocated federal funds from being spent.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal,” he said. “Judges aren’t allowed to control the executive’s legitimate power.”
Then there’s Trump’s Deputy White House Chief of Staff for Policy Stephen Miller, who has expressed similar opinions, saying that a recent, temporary ruling that blocked DOGE from accessing the Treasury Department’s most sensitive payment and data systems was “an assault” on democracy.
“So, as you’re aware, a radical left judge said that the Secretary of the Treasury cannot access the Treasury computer system,” Miller said. “This isn’t just unconstitutional. That ruling is an assault on the very idea of democracy itself.”
These are all examples of a phenomenon that my colleague Kate Riga has been tracking as Trump and his allies question federal judges’ authority to block executive branch actions and orders. In some cases, the Trump administration has already slipped out of compliance, though the extent to which that is intentional versus a side effect of the administration’s and DOGE’s chaos is somewhat unclear.
Of course, if Trump or Musk or their underlings were to explicitly, intentionally defy the courts, it would take our current Constitutional crisis to the next level.
Today, we have Trump’s nominee to become solicitor general, D. John Sauer, evading an answer on the subject. While he did not explicitly suggest he thinks it is appropriate for the executive branch or the legislative branch to defy court orders, he didn’t rule it out during his Senate Judiciary Committee confirmation hearing on Wednesday, instead raising hypotheticals about Korematsu v. United States — the ruling that upheld Japanese American internment camps during World War II.
Senate Judiciary Committee ranking member Dick Durbin (D-IL) grilled both Sauer and Aaron Reitz, Trump’s nominee for assistant attorney general for DOJ’s Office of Legal Policy, about whether an “elected official” would “be allowed to defy a federal court order.” After Reitz demurred that it would be “too case specific” for him to weigh in on the question, Durbin pressed Sauer to explain under what circumstances a federal court order could be ignored.
Here’s the exchange, per Roll Call:
The Illinois Democrat then turned his attention to D. John Sauer, Trump’s nominee for solicitor general, a role that oversees the federal government’s advocacy before the Supreme Court.
Sauer told Durbin he did not want to speak to hypotheticals. But Sauer said “generally, if there’s a direct court order that binds a federal or state official, they should follow it.”
After being pressed by Durbin about why he used the word “generally,” Sauer said “one could imagine hypotheticals in extreme cases,” and mentioned the Supreme Court decision in Korematsu v. United States.
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