When the Courts Cannot Enforce: Separation of Powers and Judicial Authority in the Trump Era

The separation of powers is the acclaimed doctrine that has governed the balance of our federal government. Each branch—legislative, executive, judicial—serves its own functions but also possesses powers that counteract the others. Informed by their experience with the British monarchy, the Framers believed that concentrating government powers into one entity could and would subject the people to an oppressive government. Thus, our founding document, the Constitution, divides the three main functions of government into independent branches of our Federal Government. The Framers incorporated various checks that each branch could exercise against the others to promote accountability and prevent any one branch from dominating or usurping the powers assigned to another. The President’s veto power, Congress’s ability to counteract such vetoes with a supermajority vote, and the federal courts’ power to declare a law unconstitutional through judicial review are just a few of these powers. To understand “separation of powers,” it is important to recognize that the doctrine fundamentally promotes a healthy tension among the branches rather than the uninterrupted autonomy of each. Madison explains this idea in Federalist No. 51, stating: 

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.

However, the health of this tension has become increasingly questionable. The contemporary political arena illustrates an intensifying strain on the separation of powers between the executive and the judiciary, as constitutional boundaries are tested through judicial responses to President Trump’s executive orders and vice versa. President Trump’s public clash with the judiciary has raised concerns about the judiciary’s legitimate checks on the other branches, posing a critical question: Does the separation of powers, particularly as exercised by the judiciary, still have teeth?

The Trump Administration brought this critical question straight to the forefront. Many of President Trump’s policy actions have drawn criticism from legal scholars, claiming they are illegal or exceed his constitutional authority. A few examples include his immigration orders, creation of the Department of Government Efficiency (DOGE), and taking control of the workforce within federal agencies. In a staggering amount, Federal Court Judges across the country have issued nationwide temporary injunctions[1]—one of their constitutional checks—against the Trump administration, ultimately blocking executive orders and action. The Trump administration, on the other hand, has replied publicly, and arguably defiantly, to these rulings. President Trump and his officials have consistently labeled judges who ruled against them as radical left judges or far-left extremists, falsely accusing the judges of being solely Democrats. Most strikingly, plaintiffs and legal professionals have alleged that the Trump administration has repeatedly and outwardly defied judicial authority, with Judges appointed by both parties in agreement.

A whistleblower complaint, filed with Congress in June of 2025, accused Trump’s Justice Department of defying court orders while also misrepresenting and withholding relevant facts and information from the courts. An analysis by the Washington Post found that in 165 court orders filed against the Trump Administration, the administration was accused of resisting court orders in approximately 35 percent of those cases.

A recurring issue in these defiance claims involves the executive branch’s handling of issued injunctions that prohibit the deportation of immigrants without due process or require their return. One of the most prominent cases is that of Kilmar Abrego Garcia, a Salvadoran immigrant who had court authorization to stay in the U.S. but was nonetheless deported to a maximum security prison in El Salvador. Multiple federal courts, including the U.S. Supreme Court, ordered the administration to “facilitate” Abrego Garcia’s return, yet the administration made little effort to comply. 

More recently, on January 14th of this year, Federal Judge Patrick Schiltz of the U.S. District Court for the District of Minnesota granted a habeas petition on behalf of petitioner Juan T.R., a man detained in an ICE detention center. Judge Schiltiz ordered that the Department of Homeland Security must provide a bond hearing under 8 U.S.C. § 1226(a) within seven days of the order, and if they do not do so, they must release the petitioner from detention. Nine days later, the Court was notified that the petitioner had not received the court-ordered bond hearing and remained detained. Judge Schiltz states in his Order to Show Cause, “This is one of dozens of court orders with which respondents have failed to comply in recent weeks. … Respondents have continually assured the Court that they recognize their obligation to comply with Court orders … Unfortunately, though, the violations continue.” In an extraordinary statement, the order further reads:

The Court’s patience is at an end. Accordingly, the Court will order Todd Lyons, the Acting Director of ICE, to appear personally before the Court and show cause why he should not be held in contempt of Court. The Court acknowledges that ordering the head of a federal agency to personally appear is an extraordinary step, but the extent of ICE’s violation of court orders is likewise extraordinary, and lesser measures have been tried and failed.

Other Federal Judges have criticized the administration’s conduct in their rulings. Judge Paula Xinis for the U.S. District Court for the District of Maryland stated, “defendants have failed to respond in good faith, and their refusal to do so can only be viewed as willful and intentional noncompliance.” U.S. District Judge Stephanie Gallagher for the District of Maryland, a Trump appointee, concluded that the government had “utterly disregarded” her order to return a wrongfully deported Venezuelan man who had also been sent to El Salvador. Additionally, Supreme Court Justice Sonia Sotomayor reprimanded the administration, writing that Trump’s officials had “openly flouted” a judge’s order prohibiting the deportation of migrants to countries of which they were not citizens.”

In their actions, President Trump and Vice President Vance have openly expressed their belief in constitutional authority to act as they have. Both reference the Unitary Executive Theory, which calls for a strong unitary executive with complete control over the executive branch under the President. The theory points to the Vesting Clause in Article II, Section I of the Constitution: “The executive Power shall be vested in a President of the United States of America.” This article is read in combination with the Take Care Clause in Article II, Section III, stating that “…he shall take Care that the Laws be faithfully executed and shall Commission all the Officers of the United States.” According to the theory, both clauses argue that the President is in charge of the executive, and his wishes and control alone serve to counterbalance the other branches of government. Additionally, advocates of the theory argue that this expanded presidential power is unchecked by Congress or the courts.

George W. Bush is often cited as the president most closely associated with the use of this theory, invoking it to justify his broad national security decisions without congressional oversight, particularly in the context of the War on Terror and its related surveillance programs. President Trump, with this theory, believes that the Constitution provides him a wide breadth of power, especially in justifying the use of Elon Musk and DOGE to eliminate jobs and take control of government agencies. Trump stated, “Then, I have an Article II, where I have the right to do whatever I want as president. But, I don’t even talk about that.” It is important to note that Article II does not grant total power; it grants “executive power,” a distinction many legal scholars have criticized President Trump for confusing.

In analyzing whether the separation of powers, especially the judiciary, has teeth, the question becomes: what happens if a judicial ruling is ignored by the other branches?  Unfortunately, not much. The reality is that when federal judges issue rulings, it is truly the respect for the rule of law and the judiciary that governs them. The constitutional design of the judiciary’s powers makes it extremely reliant on the other branches for enforcement. If someone were to violate a ruling, judges can hold them in contempt; however, enforcing contempt is another story. Compliance does not come from the judiciary; it is carried out by the executive. Contempt orders are enforced by U.S. Marshals, who operate under the Department of Justice. If contempt proceedings for noncompliance were initiated against Trump or his officials, the scenario would involve President Trump’s appointed Attorney General, Pam Bondi, to direct law enforcement action against her boss and the executive — a very unlikely scenario. History further underscores the judiciary’s longstanding difficulty of compelling executive compliance through contempt.

In 1832, the Supreme Court issued its Worcester v. Georgia decision, ruling in favor of the Cherokee Nation and holding that the state of Georgia lacked jurisdiction over the Cherokee territory and had no legal claim to their land. Georgia vowed to defy the Court’s ruling, with then-President Andrew Jackson following suit, responding, “Marshal made his ruling, now let him enforce it.” This defiance resulted in the forced relocation of Native Americans out west, later known as the Trail of Tears. This precedent illustrates that judicial authority collapses when the executive refuses to adhere to judicial decisions.

Ultimately, it is not that the separation of powers lacks teeth altogether, but that those teeth are unevenly distributed among the branches. Congress can enforce compliance through legislation, appropriations, and impeachment, while the executive branch exercises direct control over enforcement and administration. In contrast, the judiciary possesses neither the purse nor the sword. When judicial rulings are ignored, courts may issue contempt sanctions, but the execution of those sanctions depends on executive actors who may themselves be the subject of the court’s ruling. As demonstrated by both historical precedent and contemporary events, when the executive refuses to comply, judicial authority is not merely challenged; it is functionally undermined. 

The modern implications of this imbalance are profound. The doctrine presumes good-faith adherence to constitutional standards and respect for institutional legitimacy, an assumption that falters when executive actors challenge judicial authority outright. If defiance of court orders becomes normalized, the future of the judiciary’s role as a meaningful check on the political branches risks erosion, not because courts lack constitutional authority, but because that authority cannot be independently enforced. Madison envisioned a system in which ambition would counteract ambition; yet when one branch’s ambition goes unchecked, the constitutional equilibrium collapses. The separation of powers, then, endures not solely by constitutional design, but by political will. Without that commitment, the doctrine that once safeguarded against governmental tyranny risks devolving into a structure of constitutional promise without practical force. 

Peyton DeRouen

[1] In June of 2025, the Supreme Court significantly limited federal judges’ power to issue nationwide injunctions, holding that a district court may issue relief only to the specific plaintiffs before them. Trump v. CASA, Inc., 606 U.S. 831 (2025).