Keep an eye on the U.S. Marshals Service (USMS). It could play a key role in power struggles emerging within the federal government. The Trump administration has shown willingness to use USMS as a tool of political pressure. After Trump’s sweeping pardons and commutations of J6 rioters, marshals arrived to press judges for quick release of the prisoners. The marshals were sent by DOGE, an early sign of that entity’s powers; more recently, Elon Musk’s private security guards have been deputized into USMS.
USMS is a federal law enforcement agency that hunts fugitives, oversees prisoners, protects judges and others involved in federal cases, and more. The agency’s responsibilities have included escorting black students to school during desegregation; providing security during transfers of intercontinental ballistic missiles; and enforcing laws at U.S. facilities in Antarctica. The service was founded in 1789 and has a reputation for competence and toughness, bolstered by depictions in movies and TV shows.
USMS has an unusual position in relation to the federal separation of powers. It’s part of the executive branch as an agency of the Justice Department, and subject to oversight by the attorney general. However, it’s also responsible for carrying out orders of the judiciary. Normally, there’s no conflict between those roles. However, rising tensions between the executive and judicial branches raise worrisome possibilities. One is that the administration might reduce the marshals’ role in providing security for the judiciary. This could take the form of denying protection to individual judges, much as how the administration has withdrawn Secret Service protection for former officials now in disfavor.
The possibility of a constitutional crisis in which the administration defies a court has received growing notice. There have already been rebukes from judges about administration failure to comply with court orders in cases arising from lawsuits over presidential executive orders, and the administration, with dubious legality, delayed implementing a Supreme Court decision upholding Congress’ ban of TikTok. Anti-judicial rhetoric from administration officials has fed concerns that an open breach between branches could occur, with the president refusing to enforce an order, even from the Supreme Court.
In such an event, a court might take measures such as imposing fines on executive branch officials or threatening lawyers with disbarment. It’s presumed by many commentators that the judiciary would have few options to enforce its will in such a dispute, as the Justice Department would prevent USMS from carrying out orders opposed to the executive branch. However, as Walter Olson writes: “If a Supreme Court order were being defied, and the defiance was open, much would change. It is often pointed out that the US Marshals Service, which enforces court orders, is housed in the Department of Justice and thus subject to presidential direction. But the Marshals Service has a specific mission of assisting the judiciary, and corrupting that mission might not be so easily accomplished.”
Federal law states: “It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.” And: “Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.”
In a full-blown constitutional crisis, USMS will have to decide what its obligations are, and individuals within the service might reach divergent conclusions. Such decision-making would likely occur against a chaotic background, with massive public protests that could turn violent, presidential claims of emergency powers, state governments putting pressure on the federal government, and factions intensifying within the executive branch, pushing different armed agencies in different directions.
Marshals exchanging fire with, say, the Secret Service is a scenario suitable for dystopian fiction. But as the rule of law deteriorates in America, dark possibilities of what can happen can’t be excluded.
—Kenneth Silber is author of In DeWitt’s Footsteps: Seeing History on the Erie Canal. Follow him on Bluesky