How the Courts Can Prevent a Constitutional Crisis

The current political and legal landscape is rife with discussions about a potential constitutional crisis. This concern is not theoretical, but fueled by public statements and legal strategies that challenge the principle of the separation of powers.

By Alexander Hernandez, J.D., Professor, and Author of Consumer Bankruptcy Law (Routledge).

Analysis and Commentary.

Listen: The Professor’s Audio Briefing.

Key Points:

• The Constitutional Threat: The concept of a “constitutional crisis” is driven by executive rhetoric (e.g., JD Vance’s tweet, Andrew Jackson references) that treats binding court orders as optional advice.
• The Defining Act of Monarchy: Choosing to obey favorable rulings while ignoring adverse ones is a challenge to the separation of powers and establishes the practice of a monarchy, not a republic.
• The Judiciary’s Power: The ultimate defense rests with the courts’ existing power to enforce their rulings through Contempt of Court and Rules to Show Cause.
• Holding Attorneys Accountable: Lawyers, including those in the Department of Justice (DOJ) or White House Counsel’s Office, have an ethical duty to the legal system. Judges must use sanctions (fines, dismissal) to compel attorneys to refuse to file frivolous or absurd motions (like the birthright citizenship challenge).
• The Threat of the State Bar: For attorneys, the choice must be made clear: file unethical motions and risk disbarment.

The Threat to Checks and Balances

The current political and legal landscape is rife with discussions about a potential constitutional crisis. This concern is not theoretical, but fueled by public statements and legal strategies that challenge the principle of the separation of powers.

The issue is: Do the courts possess the necessary authority to defend the system of checks and balances against an Executive Branch that threatens to act unilaterally? The answer is a resounding yes, but it requires judges to fully utilize the powerful tools already at their disposal.

The debate continues to be front and center because of a tweet from Vice President JD Vance, suggesting the courts lack the power to restrain the Executive Branch. Vance even echoed Andrew Jackson’s alleged response to a Supreme Court ruling: “Now you’ve issued your order, now come and enforce it.” Vance has made the same statement on podcasts.

Such rhetoric treats court orders not as binding legal mandates, but as optional advice. If there’s a word of advice I have always given my clients is that court orders are not optional. But such political ideology is the hallmark of a monarchy, not a republic.

The problem becomes a real crisis when the Executive Branch starts ignoring court rulings it doesn’t like while following the ones it favors.

The Court’s Non-Negotiable Enforcement Power

If this were to happen, the judiciary has the authority to use contempt of court.

A court order is not a suggestion; it is a compulsory ruling. To ensure compliance, judges have the power to:

• Hold individuals in contempt: This can involve fines or, in extreme cases, incarceration.
• Issue a Rule to Show Cause: This process compels a party to appear and explain why they should not be held in contempt for failing to comply with a court order.

Attorneys working within the Department of Justice (DOJ) or the White House Counsel’s Office are at a crossroads. Lawyers have an ethical duty to the court and to the legal system itself. Filing frivolous or absurd motions, such as the ridiculous argument challenging birthright citizenship despite its clear constitutional basis, violates the professional responsibility standards that all attorneys, regardless of employer, are sworn to uphold.

If a judge begins to aggressively impose sanctions, fines, or dismissals against lawyers who submit such garbage pleadings, the result is an immediate reversal of course. Attorneys, realizing that their professional license is on the line, would be forced to refuse unethical directives from their superiors.

The choice becomes clear: a paycheck and frivolous motions, or preserving one’s license and career. We have already witnessed examples of DOJ lawyers resigning or being fired for not moving forward with certain criminal investigations.

A Clear Path to Accountability

To effectively combat the Executive Branch’s refusal to comply with court orders, judges should use their contempt power.

1. Immediacy: When an Executive Order is declared unconstitutional and the Executive Branch signals non-compliance, the trial judge must immediately schedule a Rule to Show Cause hearing.
2. Climbing the Ladder of Accountability: The judge should bring the attorney of record, the DOJ lawyer who filed the motion via Pacer.gov. If that lawyer attests that they informed a supervisor, the judge must schedule the supervisor’s Rule to Show Cause hearing for the following day. This process of following the chain of command, one day at a time, ensures that accountability is swift, certain, and public.
3. Targeted Sanctions: To ensure true personal accountability, sanctions must sting the individual, not merely the government or their political donors. Fines must be verified as paid personally by the contemnor. If financial penalties prove insufficient, the most effective tool is a bar complaint.

Professor’s Note- It has been reported that as a workaround, a different lawyer is sent to hearings each time. While that tactic seems effective, the fact is that under normal circumstances, if a lawyer attends a hearing as a replacement for another lawyer, that lawyer is still required to be prepared.

Initiating a bar complaint against a senior official or their attorney for gross misconduct, delay, or failure to comply with a binding court order sends a clear message across the entire administration. It strips away the political cover and forces accountability at a personal and professional level.

The courts are the last, essential line of defense against the drift toward a monarchy. They must stop entertaining absurd, frivolous motions and instead demonstrate that their orders are not optional.

By using the power of contempt, the judiciary can uphold the separation of powers and stop the march toward a constitutional crisis.

Colleges and universities can purchase my bankruptcy law textbook directly from Routledge Publishing. Paralegals and students who are buying single copies can do so via Amazon Books. To access my YouTube channel, click this link.

You can learn more about filing for bankruptcy and the bankruptcy petition via this link. Information on the bankruptcy court system, contact information for trustees, and your state’s exemptions can be found here. The federal bankruptcy exemptions are listed here. The latest version of the 341 Meeting of the Creditors can be found here.

You can find additional categories by clicking below or by using the search feature at the top of this page:

• Bankruptcy
• Insights & Analysis

Please note that the information on this site does not constitute legal advice and should be considered for informational purposes only.