Trevor W. Morrison and Richard H. Pildes write:

For an official to stand in continued, open defiance of a court order, he might have to defy the entire judicial system.

At that point, there is no question we would be in a constitutional crisis, and the courts could well run out of options. Here, the resolution of an ultimate confrontation between the branches, which would dominate the news, would also depend on the response of a range of actors in the public more generally.

An administration that was openly ordering more and more government officials to flout the courts and the law would most likely face significant costs outside the judiciary. The U.S. economy enjoys a “safe harbor premium.” The longstanding stability and certainty of our independent judicial system guarantee reliable protection of contract and property rights, which in turn enables long-term investments by the U.S. business community and attracts immense foreign investment in the economy.

The chaos precipitated by so radically destabilizing the judiciary and the rule of law might well have serious economic consequences, including in the stock markets. Foreign investment would likely flee the country; the dollar would fall. This would bring added pressure on the White House to comply with the courts and on Congress to demand such compliance.

Judicial independence and the stability of the rule of law take generations to establish in a credible, durable way. A foolish administration that seeks to defy the courts for short-term political gains or simply to show its “dominance” of other institutions would soon seek shelter from the whirlwind it would undoubtedly unleash. [Continue reading…]