SCOTUS Kinda Sorta Pushes Back

It was a unanimous ruling, but it comes with a catch

Don’t look now, but yesterday there was a unanimous SCOTUS ruling in favor of a wrongfully held migrant. These days we don’t see too many wins at the Supreme Court, let alone unanimous ones, especially against this administration. So the White House had to have done something pretty bad to get smacked down with no noted dissents.

And pretty bad it was. This case was about the summary deportation of a Salvadoran man, Kilmar Armando Abrego García, to a notorious prison in El Salvador normally reserved for terrorists. The government had admitted that the deportation was due to “administrative error.” That’s quite the outrageous “whoops” to walk into court with and try to defend.

But when federal district court judge Paula Xinis ordered the government to facilitate and effectuate Abrego García’s return to the U.S., the White House balked. It claimed the judge no longer had jurisdiction because Abrego García wasn’t physically in the U.S. any more. It further argued that the U.S. couldn’t tell a foreign country what to do with a prisoner—not even one held at the request of, and using money under contract from, the U.S.

I’ve written earlier about the facts of this case and what it would mean if this practice of rendition by the government were allowed to stand. Simply and rather frighteningly put, the government could whisk migrants, or even U.S. citizens, away to foreign prisons, then claim that their hands were tied because… they were in foreign prisons. This would open a huge loophole to due process big enough for Trump to drive a garbage truck through.

That prospect may have tipped even Justices Alito and Thomas into not registering any dissent to the unsigned opinion. In that order, the Court upheld the district court’s decision to have the U.S. facilitate the release of Abrego García from custody in El Salvador, and it remanded the case for further rulings.

That was the happy part.

But because we are also on the timeline from hell, and because the extremist majority always manages to play footsie with authoritarianism, the Court left open a different door for the administration to walk through. It’s why Justice Sotomayor wrote separately, joined by her two liberal colleagues, Justices Kagan and Jackson, to condemn the administration’s behavior and position.

To get a sense of what the Court left hanging, we need to parse some legal language in the order. So bear with me as I try to explain the difference between “facilitate” and “effectuate.”

Taking what steps it can vs. actually ensuring it happens

Judge Xinis’s ruling contained two important words with somewhat different meanings. One week ago, following a hearing where the lawyer for the government couldn’t even answer basic questions about the administration’s position, Judge Xinis ordered the federal government to “facilitate and effectuate the return of [Abrego García] to the United States by no later than 11:59 PM on Monday, April 7.”

A panel of the Fourth Circuit upheld this order on Sunday, but on Monday Chief Justice John Roberts placed an administrative pause on it, granting time for the parties to file papers and the matter to be considered by the High Court.

In its order yesterday, the Court oddly devoted some initial ink to explaining that because the original Monday deadline had passed for returning Abrego García to the U.S. (duh, that’s what the Chief Justice did by putting the stay in place), the Court was granting the government’s request to not comply with that order. As Prof. Joyce Vance noted in her Civil Discourse newsletter, “This part strikes me as so obvious as to be odd, almost as though the six conservative Justices were desperately looking for a bone they could throw to Trump.”

Or maybe the majority knows to throw red meat to the base, in part so it has a “win” to point to, but in part so that the MAGA mob won’t target the justices with frothing anger as it has before.

The rest of Judge Xinis’s order gets to stand, but the Court wanted “clarification on remand”—which is a fancy way of saying that it needs Judge Xinis to fix her order so it doesn’t overreach.

Here’s the issue the conservative majority has. It was proper, said the Court, for the judge to require defendants to “facilitate” Abrego García’s “release from custody” in El Salvador and handle the case as if he had not ever been sent to a prison there.

But it took issue with the idea that she could compel the government to “effectuate” his return, meaning requiring defendants to bring about his return. It called that term “unclear” and warned it “may exceed the District Court’s authority.” That’s because, it said, courts should give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” It concluded by saying the government “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

In short, “facilitate” means the government must take what steps it can to make something happen, while “effectuate” suggests that it needs to actually make it happen. The Court is okay with the former but not the latter.

But this distinction appears to buy into the government’s argument that Abrego García really is outside of its control, and that it can’t force El Salvador to release or return him. It can only ask that it does.

Oh, give me a break

In its papers before the Court, the government argued that “the United States doesn’t control a sovereign country like El Salvador, nor can it compel it to follow a federal judge’s order.”

According to the administration, such an order would be “constitutionally intolerable.” Its lawyers claimed the administration has no control over the prisoner and no authority to arrange for his return, “any more than they would have the power to follow a court order commanding them to ‘effectuate’ the end of the war in Ukraine, or a return of the hostages from Gaza.”

(Checks notes, and yes, they actually made that comparison.)

“It is an injunction to force a foreign sovereign to send back a foreign terrorist within three days’ time,” they wrote. “That is no way to run a government. And it has no basis in American law.”

(Narrator: There is zero evidence that Abrego García is a “foreign terrorist.” He was a baker whose family owned a pupuseria before being extorted by gangs in El Salvador.)

Let’s not get it twisted. The government of El Salvador is acting as the agent of the U.S., getting paid millions to hold migrants on behalf of the U.S. The head of Homeland Security, Kristi Noem, has boasted publicly that the Salvadoran megaprison is “one of the tools in our tool kit that we will use.”

We need to underscore that point. The prison is a tool in the U.S. tool kit, according to the Director of Homeland Security.

If there are reasons for that government to continue to hold Abrego García for crimes he committed there, as government lawyers have suggested in their papers, they have not come forward with any, nor with any actual evidence to support that argument.

As immigration law scholar Jean Lantz Reisz of the USC Gould School of Law Immigration Clinic observed, in past cases, the government has been ordered to return immigrants improperly removed from the U.S. after they won appeals of their removal orders. And those people weren’t even in prisons paid for by the U.S.

Further, she notes, ICE even has a formal written policy for aiding the return of immigrants who were deported while their appeals were still pending but who ultimately prevailed.

The U.S. could further tell El Salvador that it has been ordered by no less than the Supreme Court to facilitate the return of the prisoner, and that if El Salvador won’t go along, then the whole program needs to end because that would create an intolerable situation.

Of course, this is not what this administration, which seeks every opportunity to delay or circumvent direct orders, will do.

The judge and the lawyers won’t make this easy for defendants

The judge no doubt understands that the distinction between “facilitate” and “effectuate” is one this administration will likely try to exploit. So she isn’t making it easy. This morning she issued an order demanding to know the prisoner’s state and what steps have and will be taken over his return.

Further, the lawyers for Abrego García have written a letter to the government making clear that they expect immediate compliance with the Supreme Court’s ruling. They have demanded an aircraft be dispatched to bring him home, and to advise them about the details of his travel.

Expect some bad faith pushback from this White House.

The Trump administration has already argued that Abrego García is actually not entitled to return to the U.S. Even though it admits to a mistake in deporting him to a prison in El Salvador, it claimed, and will continue to claim, that he could have been removed legally and therefore has no right to return. The Supreme Court conservatives appear to wink at this; the ruling only talks about a release of Abrego García “from custody” in El Salvador, while specifically not mentioning a return. That could mean he gets out of prison but remains in El Salvador, away from his family and vulnerable to reprisal by gangs.

It’s important to note that Abrego García did not leave the U.S. voluntarily. He has a wife and son here still. Allowing the government’s own “administrative error” to bring additional harm to him would reward the government for its mistake—and invite many more such “mistakes” down the road.

In crafting its order, the Supreme Court well understood that the government would seize upon whatever “wiggle room” it created to continue to thumb its nose at the courts. It threw the White House some bones on which to chew, knowing that the administration could then continue to dissemble and delay.

But why would it do this? Why not just affirm the trial court’s order entirely?

One explanation is that Chief Justice Roberts wishes to avoid a direct confrontation with the White House. He fears that if the Court actually lays down an order against the White House fully upholding an injunction, this administration would then openly defy it, rather than undercutting it while claiming to be following the letter of the law, as has been its practice to date. It’s a dangerous dance—one that the Court is desperate to keep from turning into a knife fight it could lose.

That explanation may be correct, and this ruling may serve as a warning shot across the administration’s bow. But that’s small comfort to the many innocent people caught up in the White House’s draconian, inept and cruel campaigns that have led to travesties like the case of Abrego García.

**Update: The government missed the 9:30 a.m. deadline the district court had set to provide the requested information, including the whereabouts and status of Abrego García. The judge, now clearly miffed, gave them two more hours, but they said the government claimed it could not have the information in time.

At a later status conference hearing, the government attorney repeated his claim that he does not have any information he can share with the court at this time, despite direct orders to do so. The government has asked for additional time—until Tuesday—to file papers. “We’re not going to slow walk this,” she told the attorney.

The judge is now considering a compliance order that requires daily updates about what the government knows and what it has and has planned to do with Abrego García.**