When the Executive Defies the Judiciary: How Federal Courts Can Enforce Their Orders Without the MarshalsWhen the Marshals are ordered to stand down, the All Writs Act could operate as a legal backstop, enabling courts to fill the resulting enforcement gap by appointing other officials, including state law-enforcement officers. The Supreme Court has held that the Act authorizes commands “necessary or appropriate to effectuate and prevent the frustration of orders” issued under a court’s jurisdiction. A situation where the Executive blocks contempt enforcement would represent precisely the kind of unanticipated gap—a “casus omissus”—that the Act is meant to address.
Well, that’s something. But still, there’s this:
Courts will need to consider that non-USMS officials appointed to enforce court orders against the Government may find themselves in direct conflict—and perhaps even an armed standoff—with federal law-enforcement officers. That possibility is particularly salient in a context where the Executive Branch already has rejected the Judiciary’s Article III authority. Courts must weigh this risk carefully.