Duplicitous Process

The government is stonewalling the courts and digging in on its unconscionable migrant rendition policy.

Photo by Alex Wong / Getty Images

If you’re Justice Paula Xinis, you’re probably about ready to tear your hair out. And if you’re Chief Justice John Roberts, you hopefully understand by now that if you give this administration even the slightest bit of wiggle room, it will exploit it to thwart your rulings.

Let’s set the scene.

Last week, the Supreme Court ordered the government to facilitate the release of Kilmar Abrego García from custody. Abrego García is a Salvadoran who entered the U.S. without authorization in 2011, but in 2019 was awarded the right not to be removed by a federal immigration judge. That judge had ruled that Abrego García had a credible fear of persecution back in El Salvador, where his family business was being extorted by gangs with direct threats upon him and his family,

ICE nevertheless detained Abrego García and ignored this judge’s specific order. It deported him last month to a notorious prison in El Salvador, then admitted that this was due to “administrative error.”

Judge Xinis ordered the government to “facilitate and effectuate the return” of Abrego García from prison in El Salvador, calling the government’s actions “wholly lawless.” The government appealed all the way up to the Supreme Court, and it lost.

But rather jaw-droppingly, the government is now pretending like it won. To understand how, we need to dive in a bit to see how the government is playing cute and parsing words, but if I’ve done my job you’ll soon see why it’s all bad faith nonsense.

The SCOTUS ruling

In a ruling with no noted dissents, SCOTUS specifically affirmed the part of district court Judge Paula Xinis’s order demanding the government “facilitate” Abrego García’s return. Pay attention to the quoted language from the order below, which is the only part that really matters. Read the passage slowly, or even twice so it sinks in. I’m going to highlight the parts that jumped out at me.

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

In other words, that part about ordering the government to facilitate his release from custody is fine. It’s the effectuate part the judge must clarify, with an eye toward not stepping on the White House’s conduct of foreign affairs.

Once the government facilitates his release from custody, it must ensure his case is handled as it would have been had he never been deported.

Finally, the government should be prepared to share what it can about what it’s done to date and what it will do.

Judge Xinis’s order and the government’s intransigence

The judge followed this ruling precisely. It issued a new order requiring the government to 1) report on Abrego García’s status, 2) explain what it has already done to facilitate his return, and 3) outline what it still intends to do.

Despite the Supreme Court ruling and the very basic and straightforward order, the government has only complied with the first request, confirming that Abrego García is alive and secure in the prison. As to the rest, it has decided to stonewall.

Judge Xinis has already hauled a government lawyer before her to try to explain why no other information has as yet been provided. And over the weekend, the government filed a brief basically thumbing its nose at everything both Judge Xinis and the Supreme Court have ordered.

Trump issues conflicting statements

Before I get into the defendants’ legal arguments, such as they are, it’s worth noting that Trump has said conflicting things about whether the White House would comply.

He told reporters over the weekend that “if the Supreme Court said bring somebody back I would do that. I respect the Supreme Court.”

But later, he posted that the “barbarians” are in the “sole custody of El Salvador” and that “their future is up to President [Bukele] and his Government.”

So which is it? Trump clearly has the power to ask for Abrego García‘s return, and El Salvador would certainly comply. What Trump is really saying is that he won’t bother to even try, even if the Supreme Court orders his government to facilitate his return.

Putting words in the justice’s mouths

So how did the government’s lawyers try to wiggle out of the Supreme Court’s ruling?

First, they once again claimed that the federal courts have no say over the conduct of foreign affairs and that only El Salvador can release Abrego García. This is something that it already argued when the Supreme Court considered the case. It lost on that argument. It doesn’t get a second bite at this apple.

And in any event, it is one thing to say courts should not interfere in foreign affairs. It’s entirely another to say courts have no power to order the government to ask for the return of one prisoner who was wrongfully deported. Courts have power over U.S. officials and can order them to correct egregious wrongs, no matter the imagined foreign policy impact.

The administration also rather stunningly claims that the only thing it must “facilitate” is Abrego García’s re-admission to the U.S., but if and only if El Salvador lets him go. I actually let out a gasp when I read this argument in the government’s papers:

Defendants understand “facilitate” to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking “all available steps to facilitate” the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of “facilitate” is tenable—or constitutional—here.

The government is trying to be very cute here by arguing “facilitate” only means domestic facilitation, not international. We don’t even have to get into this hair-splitting, though. Instead, let’s look at that order again from SCOTUS. The justices unanimously said,

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.

The facilitation that the High Court had in mind was, by its plain terms, not the removal of “domestic obstacles” that would “otherwise impede” his return to the U.S. It was very expressly about his release from custody in El Salvador.

That’s also the point of the “and” in the next part of that sentence. After it has facilitated his release, it must also ensure his case is handled as if no deportation had ever occurred. That’s what “and” means.

In short, first facilitate his release from prison and let him back in, because there’s actually an order that prevented his removal. Facilitation has nothing to do with domestic facilitation.

The administration is now putting words into the justices’ mouths. It has advanced a truly tortured reading of their ruling, one that ignores the fact the justices literally agreed that the White House must “‘facilitate’ Abrego Garcia’s release from custody” and not to facilitate only his re-entry to the U.S.

There are many ways, by the way, the government could facilitate his release that immediately come to mind. It could make a diplomatic request through the El Salvador embassy in Washington. It could cite any relevant passages in the contract governing the detaining of prisoners—one that we are paying El Salvador $6 million to administer—about what happens when there’s an error or request for repatriation of a prisoner.

The White House could even make the request to the president of El Salvador directly. That guy is having dinner with Trump tonight, after all.

No updates forthcoming

The fact is, the government isn’t even bothering to ask for Abrego García’s release, let alone facilitate it. Nor is it even prepared to say what it’s doing. Remember this part of the SCOTUS ruling?

For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

But instead of simply saying what it has done, the administration has now twice ignored Judge Xinis’s demand for daily progress updates on efforts to facilitate Abrego Garcías’s release.

And it has done this while resisting discovery from the Plaintiffs, who understandably want to know who gave the orders and how the prisoner contract with El Salvador works. To avoid producing any of this discovery, the government now cites diplomatic concerns over El Salvador’s president’s visit to the U.S. which is now underway.

Escalating conflict

This is all very likely to piss off Judge Xinis. She’s got a conference set for Tuesday. The plaintiffs have moved for an order to show cause why the government should not be held in contempt.

Beyond the extremely frustrating and alarming fact that the government is now actively circumventing a direct Supreme Court ruling, the stakes are now much higher than whether Abrego García alone goes free. In her separate opinion, joined by Justices Kagan and Jackson, Justice Sotomayor warned that under the government’s reasoning, it could disappear U.S. citizens to El Salvador then claim it lacks jurisdiction.

It could then hide behind “diplomatic concerns” or even “state secrets” to thwart any inquiries as to the whereabouts and status of the prisoners, even after being told to do so by no less than the Supreme Court.

In all likelihood, this is now going to wind up back before the Supreme Court. Because the justices asked for clarification over what Judge Xinis meant by “effectuate”—which she took care of by not even requiring the government to do anything but tell her what it was doing to “facilitate” his return. But this administration showed it was prepared to exploit any opportunity to avoid compliance with the ruling.

The question then becomes, will the Supreme Court stand by its ruling, or will it surrender its power by conceding that the White House can defy it all in the name of “foreign affairs” and “diplomatic concerns”?

Stay tuned.