The Trump Administration has been a boon for the legal industry. Just trying to keep track of the lawsuits challenging this Administration’s actions seems daunting. See e.g. Lawfare’s “Trump Administration Litigation Tracker” (available at https://www.lawfaremedia.org/projects-series/tracking-trump-administration- litigation, accessed May 14, 2025) and Attorney Marc Elias’ Democracy Docket available at https://www.democracydocket.com/cases/, accessed May 14, 2025).
Just last Friday, in a 7-2 decision, the United States Supreme Court denied the Administration’s efforts to resume the deportations of alleged members of a violent gang under the Alien Enemies Act. The majority noted somewhat forcefully that since the Administration claimed it could do nothing to secure the return of a (admittedly) individual deported in error, giving some pre-deportation hearing to those targeted for deportation seemed “particularly weighty.” The majority also noted that giving those subject to deportation less than 24 hours’ notice before their removal, without any explanation as to how to exercise their right to secure a hearing, simply “does not pass muster.” See A.A.R.P v. Trump, 605 U.S. ___, No. 24A1007 (May 16, 2025) available at https://www.supremecourt.gov/ (accessed May 19, 2025).
Many (this author included) are concerned that if a court ultimately rules against the Trump Administration, the Administration may simply refuse to honor the decision. Such a crisis has not yet happened, although some have reported that Steven Miller, Trump’s Deputy Chief of Policy, has suggested suspending the Writ of Habeas Corpus and exploring “other options” if the United States Supreme Court rules against the Administration.
Mr. Miller and others may not like what they get if they seek to ignore the orders of a federal court. And while I have no idea what the future will bring, as Maya Angelou wrote in, I Know Why the Caged Bird Sings, I am “Hoping for the best, prepared for the worst, and unsurprised by anything in between.”
The Power of a Federal Judge
Federal judges have extraordinary power to ensure the parties before them abide by their decisions, and the use of those powers has long been upheld. Not only can the court impose penalties on the parties in any case, but it can also impose penalties on the individual attorneys involved in defying a court order. (Former Mayor Rudy Giuliani was famously disbarred for his efforts to overturn the 2020 Presidential Election.)
Among other things, a court can impose fines for civil contempt, criminal contempt, and injunctive relief. A court may also order a party imprisoned until she or he comply with a court order. A court may issue a declaratory judgment, publicly denouncing any offensive action, and such a public declaration could be used to mobilize public opposition. While it is true that President Trump may be able to order officials employed by the U.S. Marshall’s Service to refuse to enforce any court order (the U.S. Marshall’s Service is part of the United States Department of Justice), a court may deputize any person even state or local law enforcement to act if federal employees refuse to do so.
An excellent article by Justin Levitt appeared in the Washington Post on May 19 and outlined some of the powers of a federal judge. See https://www.washingtonpost.com/opinions/2025/05/19/courts-civil-contempt-trump- administration/ (Pay Wall).
In addition to these established penalties, within the context of the pending case where the intransigent party is litigating, a court may impose more focused sanctions such as compelling discovery, deeming facts as having been established, prohibiting or striking claims or defenses, striking pleadings, staying the action (depriving the government party of affirmative relief), dismissing the action or imposing a default judgment, ordering payment of costs or expenses, preclusion of witness testimony, ordering bond to be posted, or issuing a public reprimand. These common tools have historically been effective in urging compliance with unpopular decisions or orders.
Bring Back The Outlaw!
To be sure, a federal court currently has broad power to persuade a party (even the government) to comply with its decisions. History suggests an equally powerful tool has been used. English Common Law prior to 1879 recognized the power of the court to declare an individual to be an “outlaw” – literally beyond the protection of the law. If found guilty of “outlawry,” an individual could be stripped of her or his legal rights and protections for egregious misconduct.
The “outlaw” could be summarily killed if located within the court’s jurisdiction and certainly would be denied the affirmative protection of the legal system she or he defied.
Aspects of being an “outlaw” still exist in modern law. In matters of equity, for example, the doctrine of “unclean hands” means that one who seeks equitable relief from a court must come with “clean hands” – free of such “taint” that would make affirmative relief inappropriate. Thus, a court may deny injunctive relief to a party if that party engaged in litigation misconduct.
I am not suggesting for a moment that government officials who refuse to abide by final court judgments are “fair game” for vigilante actions. But I am suggesting that should a government official defy the lawful and final orders of a court, that official should not be able to secure affirmative court relief in that specific pending case, related cases, and perhaps (in extreme cases) any case where that official is a plaintiff.
Should the Trump Administration make it clear that it refused to comply with adverse court decisions, a strong argument could be made that the Administration’s actions warranted denying it the ability to use the court to enforce its agenda. After all, the “Rule of Law” should work both ways – defy it and you “get what you get and don’t get upset.”
I am not suggesting the Trump Administration will defy court orders it does not like. I also think that the court’s powers and remedies must be used carefully (judiciously?) and only after a complete record has been created. But to the extent we find ourselves with a defiant “Rock” President and the “Hard Place” of the Rule of Law, the public may have to weigh the alternatives.