If the Marshals Go Rogue, Courts Have Other Ways to Enforce their Orders 

One of the most alarming developments in the second Trump administration is agencies’ apparent defiance of court orders barring them from implementing illegal executive orders. As agencies including the State Department have ignored, evaded or slow-walked judicial decrees, courts have issued increasingly stronger warnings that compliance with their orders is not optional, and litigants have urged them to hold the responsible government officials in contempt of court.

Yet the prospect of holding executive branch officials in contempt threatens a fresh constitutional crisis.

Courts’ power of contempt — the inherent power to compel compliance with orders and punish actions that obstruct the administration of justice — is ultimately backstopped by their ability to jail people who defy their orders. There’d be no issue if judges themselves made arrests, but the courts’ enforcement arm, the U.S. Marshal’s Service, reports to both the courts and the attorney general. The marshals’ position within the executive branch has led commenters to predict that, if a court orders the arrest of a defiant executive branch official, the White House or Attorney General Pam Bondi will revoke the order and the courts will “run out of options.” 

As Berkeley Law School Dean Erwin Chemerinsky argues, “the hard truth for those looking to the courts to rein in the Trump administration is that the Constitution gives judges no power to compel compliance with their rulings — it is the executive branch that ultimately enforces judicial orders.”

But do the courts really lack authority to jail contemnors — people who defy court orders — if the marshals go rogue? A close look at the courts’ enforcement powers makes clear that judges don’t need to rely solely on the marshals to ensure their orders are enforced.

Even a rogue marshal’s service is not an insurmountable obstacle to courts enforcing the rule of law.

Contempt of court is classified as either civil or criminal depending on whether a court seeks to compel compliance with its orders or punish obstruction of justice. When it comes to criminal contempt, the executive really does hold a veto over contempt proceedings. While Supreme Court caselaw and the Federal Rules of Criminal Procedure recognize the courts’ authority to appoint a private attorney to prosecute contempt, the president may pardon the contemnor, rendering the prosecution an academic exercise.  

Civil contempt is different. The Supreme Court has long held that “a pardon cannot stop” courts from punishing cases of civil contempt. And while the marshals have traditionally enforced civil contempt orders, the courts have the power to deputize others to step in if they refuse to do so.

This authority is recognized in an obscure provision of the Federal Rules of Civil Procedure, which govern proceedings in federal trial courts. Rule 4.1 specifies how certain types of “process” — the legal term for orders that command someone to appear in court — are to be served on the party to which they are directed. The rule begins in section (a) by instructing that, as a general matter, process “must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”

The next section, Rule 4.1(b), is entitled, “Enforcing Orders: Committing for Civil Contempt.” It sets some geographical limits for where “[a]n order committing a person for civil contempt of a decree or injunction” may be served based on the federal vs. state nature of the underlying lawsuit. But it does not say who may enforce such an order, and it never modifies the general rule that process may be served by a marshal, deputy marshal or person specially appointed for that purpose. Thus, by its plain terms, Rule 4.1 contemplates that the court may appoint individuals other than the marshals to enforce civil contempt orders.  

This understanding of the courts’ powers is consistent with other provisions of the rules that allow them to make use of other parties as a backstop to enforcement by the marshals. For example, the rules governing civil forfeiture provide that when the court takes control of property, “the warrant and any supplemental process” may be enforced by marshals and “someone specially appointed by the court for that purpose.”

Perhaps more important, courts’ power to appoint individuals other than the marshals to enforce civil contempt orders is consistent with the broader law of contempt. A through theme in that law is the necessity of courts having independent authority to punish contempts to protect the rule of law. As expressed by the Supreme Court, “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.”

To be sure, a court that appointed someone other than the marshals to enforce a civil contempt order would be breaking new ground. Because of the marshals’ long and honorable history of respecting their legal obligation to enforce federal courts orders, the courts have rarely, if ever, had to turn to other parties to have their orders enforced. If forced to do so, however, individuals from court security officers and probation officers to local police and sheriffs have the training and experience to bring contemnors into court. And unlike the marshals, these individuals would be responsible to the court alone.

Even a rogue marshal’s service, in other words, is not an insurmountable obstacle to courts enforcing the rule of law. If courts have the courage, the legal tools are there.

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David Noll is a professor of law at Rutgers Law School and the co-author of Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy.  He teaches and writes in the fields of civil procedure, complex litigation, administrative law and constitutional law.