4

On June 27 federal judge Dana Sabraw ordered that the Trump administration had to reunify the families that were separated when they tried to enter the US. Children under 5 had to be returned to their parents within 15 days, other children within 30 days.

On July 6 the administration asked for more time, as they were having difficulty implementing the order (it's a logistical nightmare because different agencies deal with the children and the adults). This request was refused.

What happens if the administration doesn't meet the deadlines? How can the court actually enforce its order?

I suppose this is just an example of a more general question: when a court orders the federal government to do (or not do) something, how are such rulings enforced? If an administrator makes the decision to ignore the order, I suppose they can be punished, but what if the order comes from the President? Would it be an impeachable offense?

Or in this case, suppose the administration makes an effort to comply, but simply can't achieve what was ordered?

| improve this question | | | | |
  • 2
    While I believe this is on topic here, it might be easier to get an answer on Law. They should have more people knowledgeable about what the court can actually do or threaten to do. – zibadawa timmy Jul 8 '18 at 2:03
  • 1
    Politically this will cause another week of - "Look how bad this administration treats non-whites" in the news and public opinion. In the end, the administration has it within it's power to ignore the order. – Frank Cedeno Jul 8 '18 at 15:31
  • I suppose that whatever court issued the order holds the administration in contempt, which can have various penalties. – rougon Jul 8 '18 at 18:44
5

The American Bar Association recapped their analysis thus:

A judge who believes federal officials are not obeying a court order could ask the government to show cause why it shouldn’t be held in contempt of court, constitutional experts told the Post and Slate.

In the contempt hearing, the judge would try to determine who is responsible for noncompliance, according to Chicago-Kent College of Law professor Carolyn Shapiro. The government officials before the court “would likely have to produce records of who up the chain of command is directing them to act,” Shapiro told Slate. “And those higher-level people could be held in contempt.”

But would a judge actually hold the officials in contempt? University of Virginia law professor Doug Laycock doubted it would come to that. “Judges are much more likely to threaten sanctions than to actually impose them,” he told Slate. Typically a judge “tries to keep ramping up the pressure, but tries to avoid reaching the point where he has no choice but to send someone to jail.”

If Trump himself were held in contempt, there would be appeals. And a final decision would rest with the U.S. House of Representatives, said Georgia State University law professor Daniel Franklin.

Note that several Presidents have defied court orders, most notably Lincoln defying the Supreme Court's Order on habeas corpus. And recently Justice Clarence Thomas has indicated that some federal court justices have been abusing their power on injunctions and other court orders. Sabraw's order could fall into that category. The US Supreme Court could adjudicate away the order.

Long story short, if this is a logistical issue, and it appears it is, nothing is likely to come of it.

| improve this answer | | | | |
  • 2
    The most important defense to contempt sanctions is an inability to carry out the order. Contempt sanctions would be issued if the deadline could have been met, but wasn't met. The government officials charged with contempt (or threatened with it) would argue strenuously that they were unable to comply. They would avoid contempt sanctions if this was credible, but not if it was implausible. – ohwilleke Jul 8 '18 at 22:22
  • @ohwilleke I think that is implied by the first quoted paragraph, though it's not particularly clear so it helps that you pointed it out. – zibadawa timmy Jul 9 '18 at 3:08
  • Not implied. Stated as fact. The administration could demonstrate cause – K Dog Jul 9 '18 at 3:11
  • Although this may be a logistical issue, there's also the fact that the government knowingly created the logistical prioblems in the first place. They made no attempt to coordinate the agencies involved in the separation. – Barmar Jul 9 '18 at 17:33
  • @Barmar Whether they created the problem or not really doesn't influence legally whether they are sanctioned for failing to obey an order directed at curing the problem. But, if the advocates for the order show that they could have coordinated agencies and knew that they needed to in order to solve the problem, but didn't, that could be contempt worthy. – ohwilleke Jul 9 '18 at 17:42

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .