The Holmesian "Bad Man" does not believe in legal (or constitutional) obligations: the only relevance of the law is that it affects the calculation of what is in his interest. If the probability of legal sanction is low, or the benefits of breaking the law and incurring the sanction greater, then he will violate the law. That is basically Trump's approach, as the NYT usefully summarizes:
The president can’t shut down agencies that Congress has funded, yet that’s what Trump did, with Elon Musk’s help, to the U.S. Agency for International Development. The president can’t fire inspectors general without giving lawmakers 30 days’ notice, but Trump dismissed 17 of them anyway. Congress passed a law forcing TikTok to sell or close, and the courts upheld it, but Trump declined to enforce it....
In doing so, Trump has called the bluff of our constitutional system: It works best when each branch does its job with alacrity. Trump’s opponents are filing lawsuits, but courts are slow and deliberative. They can’t keep up with the changes the White House has already implemented. Congress could fight back, but the Republican lawmakers in charge have shrugged, as my colleague Carl Hulse reported. Senator Thom Tillis of North Carolina conceded that what the administration is doing “runs afoul of the Constitution in the strictest sense.” But, he said, “nobody should bellyache about that.”
As a result, most of Trump’s actions stand unchecked....
What if Trump ignores the courts? Before he was vice president, JD Vance suggested that Trump should do that if the court blocked efforts to remake the federal government. “Stand before the country and say: ‘The chief justice has made his ruling. Now let him enforce it,’” Vance said, referring to an apocryphal Andrew Jackson quote. Perhaps Trump is already flirting with that kind of defiance. Some federal loans and grants remain frozen despite court orders against Trump’s freeze.
And that is the crucial question: what if Trump decides to defy court decisions? What then? Will courts send federal marshals to arrest the Secretary of the Treasury? Will Congress impeach? Or will the Holmesian Bad Man on steroids discover that there are no sanctions for lawless behavior?
UPDATE: This analysis by law professors Jack Goldsmith and Bob Bauer is highly relevant. (Thanks to Benj Hellie for the pointer.)
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