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Scott Alexander in his recent links post highlights an interesting idea on how to deal with violation of court orders, make them an outlaw , https://www.astralcodexten.com/p/links-for-april-2025 (Edit: To clarify, this is most likely not a fully serious idea. Scott would understand how difficult it would be to actually implement, I'm just analyzing it as if it were serious and how that would work with US law.)
Taking this idea seriously, it's hard to see how it manifests in the US. Assuming no change to the constitution, which is possible but I think unlikely to convince enough citizens to go for such a change, the protection of the law is clearly outlined to any person within our jurisdiction in the 14th amendment.
In theory we could radically reinterpret jurisdiction as being "within the law" and thus said "outlaws" being outside the law would not be in jurisdiction but that is a pretty far stretch. It also makes an interesting logical question, if they're outside of US jurisdiction then are they really defying the courts anymore?
Another possible theory could hinge on a different odd and radical reinterpretation of wording,
A radical interpretation of "life" or "liberty" could include removing the status of personhood from violators, therefore removing them from the "any person" line.
Both of these are incredibly radical. The US system is not fully originalist but even the more broader minded living constitutionalists and textualists tend to take the original intent into some amount of consideration and there isn't really any mention of stripping personhood away. And even then, it's still a stretch that one can take away personhood when our definition of person has little to do with one's involvement in the legal system anyway. I don't think many would contest Shakespeare or Genghis Khan as "people" despite being born and dead before the US even existed. And defining outlaws as outside the law could end up suggesting we can not enforce rules on them either if they decide to do something like steal or murder and just hope a citizen takes action to fix it.
Even more so, it remains to be seen if such a thing would even be necessary. I'm not aware of many cases where a ruled upon contempt of court hasn't been resolved in some sort of favorable manner for the courts (an arrest, a fine, obeying the courts after the order, etc) and the ones where it doesn't happen are people who hide away or flee the country. Declaring someone an outlaw and stripping away their legal protections doesn't really help too much in the police not being able to find them, unless we want the outlaw status to allow police to violate the rights of non-outlaws in their search for outlaws.
And even the most famous examples of court defiance tend to be apocryphal historical information, a misunderstanding of the orders by laymen or a mix of the two. Sometimes political leaders will even mislead about their actions, presenting an appearance of "fighting back" for their base while actually pivoting to another strategy that hasn't been ruled on yet. Actually serious major defiance of court rulings just hasn't really happened and thus the need for an alternative solution seems questionable IMO.
Ok but let's assume that the constitution does get changed. Maybe Scott runs for president on the "Let's change the constitution to make outlaws" platform, and the voters all surge for pro outlaw amendment congressmen and governors, and even the politicians currently on the fence are convinced of this idea. What then? That's already been covered decently in depth by Scott years ago and I don't know if I can add too much for this. I don't have much knowledge about the medieval Icelandic system beyond what I learned from this article. But regardless I think the likelihood of such a change is so low the discussion is purely in the hypothetical at this point.
More likely IMO (although still highly unlikely) would be to adopt the punishment of exile. Why do I think this is relatively more likely? It has history in the Roman legal system and British law systems which are already major inspirations for the American legal system so adopting anything from them is more precedented and that precedent may be more convincing to the population for a new amendment.
The administration was ordered to “facilitate” his return. That’s different.
It’s unclear why SCOTUS should be able to order the president to take a citizen of El Salvador, who is currently residing in El Salvador, and bring him to the US. What if El Salvador just doesn’t want to give him up? Given these facts, it’s reasonable to read “facilitate” as “facilitate only to the extent possible”.
Even SCOTUS has limits on their powers. I don’t think we should expect them to be able to order the president to bomb another country, for example. Their power diminishes rapidly outside of US borders.
For anyone else just reading this topic for the first time- the lack of definition of what 'facilitate' entails was the crux of last week's discussion thread on this topic.
If 'facilitate' is used in the sense of 'make easier,' then no change in the person's actual location status is required. 'Facilitate' does not mean 'achieve.'
If 'facilitate' is used to demand a result, this becomes a foreign policy requirement, and especially an international sovereignty conflict, which creates a constitutional issue against the court demanding such a result.
As Prima notes, the Supreme Court did not order a result. The courts that have denied 'make easier' efforts as sufficient facilitation are lower courts. Tthe Supreme Court has not specifically weighed in on their ability to demand a result versus an effort.
Yeah the exact meaning here is really nuanced in a way that most people struggle with and it's not fully fleshed out yet either. Courts are not completely blind, there is flexibility for basic human reasoning and interpretation built into them but they are also majorly concerned with procedure.
A (highly simplified) way to explain what will happen is that the courts essentially go "Ok Trump show us what steps you've taken to help to facilitate his return and what barriers prevent you from achieving that goal", the Trump admin responds "We've done X, Y, Z, and have A, B, C barriers", the judges use their sense to determine how serious that response is and if they appear to be acting in good intentions to follow the order and rule accordingly.
As an example, let's say someone (idk John) has a restraining order on him for domestic violence and he has a stay away provision of 100 yards from Jane. However unknown to John, him and Jane both shop at the same grocery store. This happens sometimes and the restraining order typically accounts for it. As long as John takes action to leave immediately and not engage (that includes not finishing his shopping/pumping gas/whatever) then normally a judge wouldn't really punish for that, they know mistakes happen.
However let's say the court received legally admissable evidence of phone records where John messaged his friend Joe "Hah, I just saw Jane at the grocery store. I think I'll keep going there and maybe she'll see me and freak". The judge can take that into consideration and say "John, you violated your order. This was not incidental, you knew it would happen and continued to shop there for that reason".
Now not all evidence is so explicit as John admitting to it himself in text. It could be just testimony from Joe, it could be certain weird actions John took like always hanging around the store on the days and times Jane normally went shopping, whatever. Or maybe John didn't leave immediately and even worse went up to Jane to talk, which is now breaching the order with intent. Quite a few people end up violating restraining orders (to them "unfairly") because an accidental encounter was turned into an intentional breach by their choice to not disengage and make distance. Whatever it is, the judges take context into account.
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