Introduction
In a constitutional showdown with the executive branch, the courts may seem to have limited remedial options. Once we reach a point where courts conclude that the Executive is violating the law, what can they do but order compliance? And what can we do but hope that the Executive feels compelled to comply, whether by conscience or political forces?
Today, that compliance is hard to take for granted. Indeed, the risk is that the executive branch will blow off the judiciary, ignoring its judgments, refusing to obey its decrees, courting contempt, accusing judges of fictitious wrongdoing, and tacitly encouraging retaliation against them. And indeed, there is evidence that this is what is happening.1
The upshot is that we are slipping into a crisis of judicial authority — what one could call a “constitutional crisis.” We use the phrase here reluctantly, for it is overused and vague. And we use it without knowing what will come next, and even though we might need a new word if things get worse. (It was called the “Cuban Missile Crisis,” even though it ended fine, and even though it could have gotten much worse, and even though we would have needed a new term for what happened if it did.) The phrase “constitutional crisis” at least captures the sense that the courts face an unusual challenge today, and that the precedents, such as they are, are not reassuring.2 Call it what you will, it is not good.
What courts can do to enforce their decisions in such a crisis is the inquiry at the heart of this Essay. If courts cannot assume that the Executive will simply accept their decisions, what options are open to the least dangerous branch? Do the federal courts have choices that will coax the executive branch into more law-abiding behavior? Or will those choices hasten the slide toward an equilibrium in which the Executive acts contemptuously but escapes contempt? Do the federal courts have choices that will provide an effective resistance to lawbreaking by the Executive, shoring up the rule of law? Or will those choices merely accelerate and heighten the conflict between the branches, precipitating a battle that the judiciary can start but not win?
Our central claim is that the range of remedial options available to courts is broader than it may seem at first — and that the best path is not always obvious. Even when it is clear that the executive branch has acted unlawfully, it is not necessarily clear what courts can do about it. Even if we are in a crisis, and the choice of judicial response is very important, that does not make obvious the correct choice. We recognize that our readers will assess the risks associated with each option in various and varying ways, and that our own assessments may change as the world changes.3 (Indeed, much has changed since this Essay was presented in October 2025.) So this Essay does not attempt to crown any one choice as the right one. Nor do we claim that any of these remedial choices will be enough to avert or undo a constitutional crisis. They are not remedies in that sense.
Our aim is more modest: We will lay out the menu of options that are available to federal judges, highlighting the tradeoffs among them. But we recognize that we do not have the burden of choice, which belongs instead to the judges — and, we should acknowledge, to the President and the other executive officers and employees, as well as to the members of Congress. In every separation of powers crisis, and in every averted separation of powers crisis, the decisive decisions are not made by law professors:
Bullfight critics ranked in rows
Crowd the enormous Plaza full;
But only one is there who knows
And he’s the man who fights the bull.4