March, 2025
Washington — Some of our nation's leaders see our country in a constitutional crisis with no way out because the founders did not provide necessary checks and balances against an executive who believes he is not bound by the rule of law, a legislative branch fearful of checking him, and a judicial branch with no power to enforce its decisions.
How might James Madison react to this assertion? I think he would push back and say the checks are there, just waiting to be used.
Take, for example, illegal impoundment of funds appropriated through the legislature's power of the purse. A judge orders the funds to be used as directed, but the executive does not comply in good faith, creating an impasse. A next step that Madison might recommend? The plaintiff could ask the court for a finding of civil contempt. After a hearing, the judge can impose fines or take other actions against executive officials not as punishment but to force compliance, with steep and perhaps escalating prices for refusal.*
Note that in the Madisonian system, the executive has the the power to pardon criminal convictions, but not civil judgments. And the pardon power does not extend to civil or criminal convictions in state courts. (Also note: a judge can make a finding of civil contempt without a complaint from the plaintiff, but may be reluctant to do so for fear of personal safety or political attacks from the executive. Hence empowering the plaintiff with this check makes it more practical and effective.)
So far, in the first two months of the current constitutional crisis, it's not clear how many plaintiffs have asked courts to deploy this check on the executive, and no judge has exercised the check. It's overdue, at a time when life-saving medicines are being withheld from suffering populations all over the world, food produced by American farmers is rotting rather than being delivered to the hungry, not to mention the possible collapse of federal agency systems on which we rely for food safety, tax administration, weather forecasting, student loans, aviation safety, air and water quality, and Social Security.
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*Civil judgments can be enforced by fines, imprisonment, and liens against private property. Federal judges can deputize state law enforcement to carry out the judgments. In the D.C./Maryland area, state and local officials must be ready to enforce, as required, federal district judges' decision in cases where the U.S. Marshals Service is unavailing.