Legalistic Noncompliance

Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occuring? <br> <br> This Article documents an emerging practice that has dominated the second Trump administration’s approach to unfavorable court rulings, a practice this Article calls&nbsp;<i>legalistic noncompliance</i>. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing strength from a kind of casuistry, practitioners of legalistic noncompliance deploy an array of specious legal arguments and legalisms in an attempt to conceal what is actually widespread resistance to judicial oversight. <br> <br> In addition to identifying legalistic noncompliance as an emerging phenomenon, we explore its logic and analyze some of its dangers. We suggest that legalistic noncompliance lowers the public salience of noncompliance while, at the same time, signaling to both judges and officials in the executive branch that the administration is not complying with court orders. That dynamic, in turn, could lay the groundwork for outright noncompliance or something we call legalized noncompliance—where courts craft rules that allow judges themselves to say the administration is complying with court orders when, in reality, the administration is doing little to nothing in carrying out a court’s ruling. <br> <br> We do not purport to establish when courts should reject legalistic noncompliance by calling it out as a form of noncompliance. The politics of the moment, more than anything else, may determine if they do. We write instead to surface the developing practice and explore its costs, which have thus far escaped full consideration.