With congressional Republicans firmly in Trump’s pocket and an administration stocked with toadies, the federal judiciary stands as the only constraint on his many legally dubious actions. So far, the lower courts have met the challenge as judges across the ideological spectrum frequently rule against his excesses.
Whether the Supreme Court is up to the task remains to be seen. In several preliminary rulings, the Court overturned lower court orders adverse to Trump on technical grounds. While each individual ruling may be defensible, some pundits (but not all) suggest that, taken together, they show a pattern of reluctance by a majority of justices to confront Trump.
The outrageous deportation of Kilmar Abrego Garcia to El Salvador could be the first direct test of the Court’s resolve. The Supreme Court’s April 10 preliminary ruling in his case is widely viewed as a win for Abrego Garcia; however, the end game remains very much in doubt. The justices agreed with lower courts that Abrego Garcia should be brought back to the United States but were less than supportive of the judiciary ordering that he must be returned.
The Court’s apparently unanimous per curium opinion acknowledged that Abrego Garcia’s deportation was illegal since it violated an immigration agency order prohibiting sending him to El Salvador, and the opinion confirmed that he had wrongly been denied due process.[1]The Government conceded both points, admitting that his deportation resulted from what it euphemistically called an “administrative error.” It also affirmed a district judge’s order that the Government pursue getting him back to the United States.
From there the opinion veered into ambiguity. While concluding that the district judge appropriately ordered the Government to “facilitate” Abrego Garcia’s return, it seemingly balked at the notion that the judge could go so far as to require the Government to “effectuate” his return, i.e., make it happen. The Court called on the judge to “clarify” that part of her order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
The opinion also seemed to constrain how much information the district court could demand concerning efforts to bring Abrego Garcia back. It stated that the Government should be prepared to “share what it can” concerning steps to obtain his return.
The case now comes down to the sole question of whether the courts can make the Government return him if it persists in resisting. Specifically, what happens if it continues to insist, however implausibly, that it can’t force the Salvadoran government to give him back or that his return is somehow precluded by privileged foreign policy considerations that it can’t “share”? On its face, the Court’s opinion seems to leave the door open to these assertions.
It will be a sad day if the Supreme Court ultimately accedes to this obvious subterfuge and condones the gross miscarriage of justice that defines this case.
From the outset, it featured patently illegal, bad faith conduct by Trump Administration officials. Abrego Garcia was one of over 200 alleged “terrorist” gang members surreptitiously seized without warrant, removed from the United States, and transported to a notorious prison in El Salvador with no due process. This was supposedly based on the Alien Enemies Act, a law that appears inapplicable by its plain terms. It is also far from clear that some deportees, including Abrego Garcia, were in fact gang members.[2]From the sketchy information available, there appears to be little if any credible evidence of gang membership regarding Abrego Garcia. And, notably, he is alleged to be a member of MS-13, not the … Continue reading
Undoubtedly, the deportations were conducted hurriedly and secretively at least in part to avoid prior judicial review. Even after the fact, government officials have impeded judicial review at every turn. They defied one federal judge who ordered the deportees’ return while some flights were still in the air and later stonewalled the judge to the point that he was considering holding them in contempt.[3]The Supreme Court ended this case by ruling that the judge lacked jurisdiction.
Justice Department leaders spearheaded a similar effort against the district judge in the Abrego Garcia case, going so far as to fire one of their own attorneys for being too candid with the judge and not sufficiently vigorous in stonewalling her. (Shamefully, they appear not only indifferent to their own ethical obligations as officers of the court but determined to force subordinate attorneys to compromise their ethical obligations as well.)
The Government’s assertion that it can’t return Abrego Garcia to the United States is utterly disingenuous if not an outright lie. El Salvador is essentially a custodial agent for the United States under an agreement in which the United States pays the Salvadoran government $6 million to hold the deportees “for one (1) year, pending the United States’ decision on [their] long term disposition.” (Emphasis supplied)[4]See the trial judge’s opinion at page 6.
There is no reason to believe the Salvadorans would (or could, under the agreement) refuse a request to return Abrego Garcia to U.S. custody for transport back to the United States. Moreover, he is not alleged to have committed any crime in El Salvador so the Salvadorans have no reason of their own to detain him. Even Trump said that he could get Abrego Garcia back, and would do so if the Supreme Court told him to, before he was apparently advised to walk back that statement.
All three levels of the federal judiciary have ruled unanimously that Abrego Garcia’s deportation was unlawful and that he should be returned to the United States. One might think the Trump Administration would get the message and finally do the right thing. (The Supreme Court was surely hoping they would too.) Instead, clearly emboldened by the wiggle room in the Court’s opinion, it has become even more recalcitrant.
The Justice Department’s latest filing takes the absurd position that its obligation to “facilitate” Abrego Garcia’s return means nothing more than to remove any “domestic barriers” to his return. Under this ridiculous interpretation, the Trump Administration need not even ask the Salvadorans to turn him over to them.
Perhaps this latest act of flouting the law and disrespecting the judiciary—now including the Supreme Court by grossly distorting its opinion—will be the final straw. It’s hard to imagine why or even how the Supreme Court would still give any credence to the Trump Administration’s transparently false assertions. Indeed, considering its conduct in this and other cases, it’s hard to imagine a president or a Justice Department less entitled to the presumption of regularity and good faith usually accorded to the executive branch.
If the Trump Administration persists and forces the Supreme Court to take another shot at the case, the Court should definitively put an end to this lawless, unconscionable farce.
Footnotes
↑1 | The Government conceded both points, admitting that his deportation resulted from what it euphemistically called an “administrative error.” |
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↑2 | From the sketchy information available, there appears to be little if any credible evidence of gang membership regarding Abrego Garcia. And, notably, he is alleged to be a member of MS-13, not the Tren de Aragua gang that is the subject of Trump’s executive order invoking the Alien Enemies Act. |
↑3 | The Supreme Court ended this case by ruling that the judge lacked jurisdiction. |
↑4 | See the trial judge’s opinion at page 6. |