Professor reveals 'centuries-old' tool that can stop Trump

President Donald Trump has set up an endless series of showdowns and confrontations with federal courts, walking right up to the line of ignoring court orders and, in some cases, being accused of actually doing so. But there is a "centuries-old" mechanism courts can use to fight back, Loyola Law School constitutional law professor Justin Levitt wrote in an analysis for The Washington Post published Monday.

"Though Alexander Hamilton called the judiciary the 'least dangerous' branch, the courts’ centuries-old civil contempt authority makes it plenty mighty when it wants to be," wrote Levitt.

The Trump administration is facing lawsuits on numerous fronts, seeking to bar everything from his massive layoffs of the civil service to his efforts to rewrite the Fourteenth Amendment.

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"Judges appointed by at least eight different presidents, including Donald Trump, have been drawn into the litigation that has followed. Those courts have acted like courts, restrained and institutionally conservative," he wrote. "This administration has increasingly openly defied straightforward judicial commands," most notably the refusal to do anything to return wrongly-deported Maryland family man Kilmar Abrego Garcia from a Salvadoran megaprison.

Civil contempt sanctions are more likely to work in this case than criminal sanctions, Levitt continued: "The sort of authority used for punishment, to sanction past wrongdoing, is the criminal contempt power. But the version more likely to command executive attention is instead part of the civil law, and more forward-looking. It is immune from any power to pardon. It doesn’t rely on another branch to execute. And it’s less likely to be repurposed as a martyr’s badge of honor. All this makes civil contempt a more effective tool for extracting future performance."

For example, he noted, everyone involved in the Abrego Garcia case could be sanctioned by a $1,000 fine that doubles each day. "One thousand dollars doubling every day adds up to a total of $1 million in 10 days, $1 billion in 20 days and $1 trillion in 30 days. The structure should be the minimum necessary to produce compliance. But if more vigor is needed, nothing requires the fee to start that low or multiply that slowly."

Moreover, Levitt wrote, no other branch of government is required to cooperate to enforce civil contempt: it is "legal debt from the moment it is issued, in which exponential compounding credibly threatens to destroy creditworthiness and supports the seizure or retitling of property to be sold in satisfaction of the judgment."

"This is not to say that the judiciary will save us. We citizens are the primary agents of our own self-governance, and popular support for a lawless regime is not something the courts can undo," Levitt concluded. However, "if the American people support the rule of law, the courts have ample power to protect that public preference. They just have to want to use it."