Yale Law School Professor Nick Parrillo must have a crystal ball. His just-posted article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, seems to have anticipated today’s headlines. The controversies over Trump’s ill-considered Immigration Executive Order, Trump’s summary firing of Acting Attorney General Sally Yates for refusing to defend the Order, and reports that some Customs and Border Protection agents may have disregarded court orders, all suggest that we may be moving quickly towards a smack-down between the Executive and Judicial branches, with the looming possibility that Trump will direct government officials to disobey court orders.
Fortunately, Professor Parrillo has written the definitive account of how courts deal with Executive Branch defiance of court orders. Here are portions of the abstract of his article:
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. . . . An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years.
These compliance negotiations are little understood. . . . [I]f the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply?
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Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
Until now, government disobedience with court orders has been an obscure and rarely examined codicil to administrative law. None of the leading administrative law casebooks deals with the question. A few mention the “non-acquiescence” stance taken during the Reagan Administration. But “non-acquiescence” is a far cry from disobedience. Ultimately, the Reagan Administration complied with courts orders, even if it insisted on circuit-by-circuit adjudication of the same issue. The lack of scholarly attention to the issue of Executive disobedience is unsurprising. As Professor Parrillo documents, the Executive and Judicial branches have by and large sought to avoid head on collisions. Professor Parrillo is the first scholar to attempt to impose some order on what has been an unruly and neglected subject.
Fortunately, Professor Parrillo has done yeoman’s work in telling the stories of these cases. Having spent much of my career battling the government in court, I participated in some of the cases discussed in the article. Much of their history is not laid out in reported decisions; which may explain why this issue has long been ignored by scholars. Rather, the stories had to be painstakingly unearthed by digging through old case records and reading mounds of motion papers, briefs, and affidavits. Professor Parrillo’s research provides a deep and highly detailed factual account of what really takes place in cases where the Executive Branch feels it necessary to defy a court order.
As the new President tests the limits of the courts, judges, litigators, agency lawyers, and scholars who have long wondered about the dynamics in contempt actions against government agencies but never had more than a small window into one or a few cases will turn to Professor Parrillo’s article for guidance. It is a primer for anyone watching the Trump Administration edge closer and closer to defying court orders.
David C. Vladeck is a Professor of Law at Georgetown University Law Center.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.