But what if a citizen’s defense is that compliance with the state’s legal mandate is impossible? Interestingly, that is a not a novel legal question. In a number of contexts, the Supreme Court and lower federal courts have raised due process concerns in the face of impossibility, especially state-created impossibility.
For example, in Societe Internationale v. Rogers, the Supreme Court held the trial court improperly dismissed a case for a “failure to do that which it may not have been in its power to do.” In other words, since the litigant did not have the power to comply with a court production order, it could not be penalized for failing to comply — especially when that inability is “fostered neither by its own conduct nor by circumstances within its control.
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