The Appellate Void

Abstract

What would it actually look like for the executive branch to defy a court order? The standard picture involves a dramatic confrontation between the President and the Supreme Court. But recent events suggest a more mundane possibility that has been largely overlooked: After an adverse ruling, the government might simply ignore the district court’s order and refuse to appeal. As the prevailing party, the plaintiffs could not appeal. The result would be an appellate void, in which lower federal courts lack effective tools for enforcing their decisions against a recalcitrant executive and higher courts lack any obvious path to intervene.

This Article provides the first map of this unfamiliar terrain. It explains the jurisdictional dynamics that create the appellate void and why contempt sanctions offer little practical remedy. It then analyzes why a President might find this strategy tempting: confronting a single district judge rather than the Supreme Court fundamentally changes the politics of interbranch conflict. In effect, the appellate void constitutes a reverse Marbury v. Madison. Instead of the Supreme Court asserting the power of judicial review, while leaving the President powerless to push back, the President would assert the power to defy the federal courts, while leaving the Supreme Court powerless to respond. The Court’s recent decision in Trump v. CASA, Inc., opens the door to a more subtle variant of this strategy. After CASA, an administration could comply with court orders only as to specific plaintiffs, while continuing to enforce the challenged policies against everyone else. By refusing to appeal, the President would deny higher courts any opportunity to weigh in, without actually defying any binding judicial order.

These scenarios are not inevitable. Courts and litigants have many potential responses. But if successful, the appellate void strategy would have dramatic implications for judicial review, separation of powers, and the rule of law.

Keywords: appellate void, appellate standing, standing to appeal, Article III, standing, All Writs Act, contempt, mandamus, departmentalism, defiance, judicial review, remedies