President Trump’s nominee for solicitor general said in his confirmation hearing Wednesday that there are “extreme cases” where it is conceivable that an elected official could defy a court order.
“Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” D. John Sauer told Sen. Dick Durbin (D-Ill.), the ranking member of the Senate Judiciary Committee.
Durbin zeroed in on the nominee’s use of the term “generally.”
“Why do you say generally?” Durbin asked. “Give me an exception that would be acceptable to you.”
Sauer pointed to two past court rulings: the 1944 case that upheld the legality of Japanese internment during World War II and the 1857 case that determined slavery was legal.
“I suppose if we, again, as I sit here, I can’t think of a hypothetical one way or the other,” Sauer said. “I suppose one could imagine hypotheticals in, you know, extreme cases like, you know, the Korematsu decision, you know, the Dred Scott decision.”
On Korematsu, Durbin asked Sauer to “describe for me that circumstance that you think relieved an official from obeying a court order.”
“Well, I believe there was a court order there that upheld — which has now been, I think, correctly repudiated by virtually everyone — a court order that upheld the internment of Japanese civilians,” Sauer said.
Durbin noted that the court order was followed for “as bad as it was.”
Sauer replied: “And I just wonder whether some historians might think we’d be better off if it hadn’t been followed. But once again, I don’t want to get into a discussion of hypotheticals.”
The exchange comes as Democrats have expressed concern about the possibility of Trump defying a court order. He has leaned into Democrats’ concern by recently referring to himself as a king and posting on social media, “He who saves his Country does not violate any Law.”
Durbin echoed this concern in his reply to Sauer at the hearing.
“I want to get into it because I think it goes to the heart of a question of a future constitutional challenge we face as a nation,” Durbin said. “There’s a great fear among many people, academics and people in the legal profession, as to whether or not this president would defy a court order, which basically would put him above the law, at least in his own eyes, and I want to know what circumstances Mr. Reitz and Mr. Sauer believe justify that conclusion.”
