Abstract: Almost immediately upon his second inauguration, President Trump took several actions that subvert longstanding norms, contravene long-settled Supreme Court precedent, and disrespect the authority of the coordinate branches to check executive branch excess. The Administration’s actions pose both immediate and long-term challenges to the American constitutional order, with many scholars and citizens believing that the United States is in the midst of a constitutional crisis. At minimum, the Trump Administration’s actions have illuminated sticking points in both functionalist and formalist conceptions of the separation of powers. For this model of shared but distributed power to function, each branch must give due respect to the outcomes of its dialogic interactions with other branches. When one branch rejects these norms of engagement, the system will not function as intended and the governmental excesses of that branch will go unchecked, even if they violate substantive constitutional or statutory limits.
Other scholars have looked to U.S. history for insight into how to mitigate the near- and long-term repercussions of executive branch noncompliance and defiance. This Article takes a different approach. Instead of looking back, we adopt a comparative lens and look abroad to European states’ (non)compliance with decisions of the European Court of Human Rights (ECtHR), a supranational court with jurisdiction over forty-six member-states. Despite significant differences between the U.S. and European legal systems, the relationship between the ECtHR and member-states shares important characteristics of the relationship between the federal judiciary and the executive branch in the United States. These characteristics make the ECtHR a good comparator for studying the causes of, and solutions to, breakdowns in norms governing the relationship between the two branches. And the ECtHR’s particular experience with enforcement and compliance in the face of political and other backlash offers lessons for how Americans—judges, lawyers, lawmakers, and members of the public—can and should respond to current and future executive branch noncompliance and anti-constitutionality.
Drawing inspiration from the European human rights system, which epitomizes respect for the rule of law and human rights, this Article proposes a novel framework for understanding and responding to the challenges of enforcing federal court judgments against a noncompliant executive branch. Specifically, we derive four lessons from the ECtHR experience that can be adapted to fit within the American constitutional structure and have the potential to promote better compliance with and enforcement of U.S. court judgments. First, we recommend formalizing opportunities for civil society oversight and ensuring legislative protections for civil society as central watchdogs of our democratic system. Second, we propose that courts make increased use of court-appointed equitable helpers. Third, an institutional dialogic process should be formalized through a judicially administered enforcement authority, with the power and expertise to assess compliance. Fourth, we suggest employing civil penalties to facilitate enforcement, reflecting the fact that monetary remedies are one of the most straightforward ways European states comply.
