Must the President Cooperate with an Attempted Coup?

Nineteen rebellious states attempt to override the Constitution and hamstring the country's chief executive.

The assault on the President’s constitutional powers

The opening sentence of Article II of the U.S. Constitution is straightforward and grants the one person — the President — broad powers:

The executive Power shall be vested in a President of the United States of America.

Nineteen rebellious states1 are now attempting to usurp that executive power, which the Constitution vests solely in one person — the President. This case, which seeks to wrest control of the Department of the Treasury away from President Trump and Secretary of the Treasury Scott Bessent, is part of the ongoing campaign of lawfare by which the Democrats seek to frustrate the will of a majority of voters and states, thereby overturning the results of the presidential election. They have been aided and abetted thus far by a pliable, low-level federal judge in New York. The case is now proceeding with another judge. We shall see.

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Must the president cooperate with an attempted coup camouflaged as a court order?

Short answer: No.

People have been trained to believe that a President must follow the orders of a third-tier federal judge, because orders coming from any of the 1000+ federal judges in the country4 are the “law of the land” and must be regarded as supreme.

Such deference should usually be granted as a matter of comity, when judges stay within recognized constitutional bounds. But where a judge veers far from the constitutional path and enter a patently erroneous or unconstitutional order, a President is not required to follow.

First, we start with the proposition that the judiciary is not the supreme branch of the government. It is one of the three co-equal branches. The lack of supremacy of the entire judicial branch is highlighted when you consider that there are over 1000 active district judges. When the Constitution vests the executive power of the Unites States in one person — the President — it defies common sense to think that he is obligated to obey every order from each of those 1000+ judges who might try to second-guess his exercise of that power.

Next, when you consider a couple of examples, the fallacy of that broad reasoning becomes even more apparent.

What if one of the 1000+ district judges were to enter an order forbidding the President from accessing highly classified military documents such as nuclear attack plans, on the grounds that the President has not been properly trained. (That alleged lack of training was one of the bases for Judge Engelmayer’s Order prohibiting certain officers and employees from accessing documents.) Would the President be required to follow such an Order? I think not. Neither would he be obligated to litigate the matter through the court system for months or even years before obtaining an answer from the Supreme Court. No, the President should continue to exercise his command authority over the military, and say, as President Jackson famously did, “John Marshall has made his ruling now let him enforce it.”

Or, what if a low-level judge forbade, say, the Secretary of Transportation, from accessing sensitive documents held by agencies he supervised, because he previously had been only a small-town mayor and had not “passed all background checks and security clearances and taken all information security training called for in federal statutes” that some civil servants get to safeguard private information (as Engelmayer also required)? I think that even most Democrats might shrink from such a rule.

Everyone can come up with their own examples. But the answer to the initial question above is a resounding “No.” The President, as the Chief executive officer of the country is not obligated to heel every time an out-of-control federal judge jerks his leash.

And in addition to Andrew Jackson, there is powerful precedent for a president’s refusal to acquiesce in a court order. President Lincoln famously defied an order entered by Supreme Court Justice Taney. Lincoln had suspended the writ of habeas corpus in certain sensitive military areas. Federal troops had arrested and imprisoned a Confederate sympathizer who had been “recruiting, training, and leading a drill company for Confederate service.” When the prisoner sought release pursuant to a writ of habeas corpus, Justice Taney, sitting as a trial judge, entered an order and opinion that Lincoln’s suspension of the writ was outside his powers. Lincoln did not resolve the matter by appealing the order. President Lincoln just ignored Taney’s order.