Randy Hilman: Robed toothless tigers? When courts cannot compel, republic is at risk

To The Daily Sun,

In the autumn of 1832, President Andrew Jackson was told the Supreme Court had ordered Georgia to release two missionaries imprisoned for defying state law on Cherokee land.

His response has echoed through American history: "John Marshall has made his decision. Now let him enforce it."

Jackson didn't say exactly that — but he expressed the same sentiment in a letter to a friend. He refused to enforce the court's decision. The Cherokee were driven from their land at gunpoint in what historians dubbed “The Trail of Tears.”

The Supreme Court could do nothing about it.

That was 1832. It could happen again.

Most Americans assume that, when a federal judge issues an order, it will be carried out. But enforcement depends almost entirely on one agency: the United States Marshals Service — the oldest federal law enforcement body in the nation.

The Marshals serve court papers, protect federal judges, and enforce court orders. They are, in the most literal sense, the long arm of justice.

However, the service reports to the attorney general — a Cabinet member who serves at the president's pleasure.

That arrangement has largely worked because most administrations respected the norm that court orders are obeyed. But norms aren't laws and we’re now living in a moment when democratic norms are under extraordinary pressure.

Here's the danger: if a president directed his attorney general to instruct the Marshals not to enforce court orders, the courts would have no independent means of compelling compliance.

A judge could hold the administration in contempt. But who would enforce that order? The same Marshals told to stand aside.

A court that can be defied is not a court. It's a suggestion box.

That bright line is already being tested — agencies slow-walking compliance, re-issuing challenged policies under new names, questioning whether courts can constrain presidential action. Each test that goes unchallenged makes the next one easier.

The remedy is structural. Congress should explore removing the Marshals Service from the executive branch and placing it under authority of the federal judiciary. The courts are a coequal branch of government. They should not depend on executive goodwill to enforce their decisions. A Marshals Service answering to the chief justice cannot be ordered to stand down by a hostile White House.

Critics argue this upsets the balance of powers. Others say the remedy lies at the ballot box. Both objections assume a level of political functionality that may not exist when it is most needed.

Structural safeguards exist for moments when political will fails. Seatbelts save lives not because we plan to have accidents — but because we have them.

The Founders built a system of checks and balances because they knew virtue would not always prevail. They wrote a constitution for storms they hoped would never come.

The question is not whether a moment like 1832 will come again. The question is whether we will have had the foresight to prevent or find ourselves asking, much too late, who will enforce our laws; our democracy.

Randy Hilman

Moultonborough