The Supreme Court last week largely upheld a trial judge’s order that said the Trump administration must bring Kilmar Abrego Garcia back to the United States after illegally deporting him to El Salvador. But the high court needlessly complicated the matter by not simply rejecting the government’s appeal to reverse the judge’s order; rather, in the process of backing the judge in principle, the justices took issue with some of the wording of her order and sent the case back to her for further litigation, in which government lawyers have predictably tried to continue avoiding compliance.
While responsibility for defying court orders obviously lies with the party defying the court orders, the administration’s latest obstinance shows that the better course at the high court would’ve been for the justices to have gone the route offered by the court’s three Democratic appointees, who issued a statement accompanying the order, written by Justice Sonia Sotomayor, that said she would’ve denied outright the administration’s bid to upend the judge’s order.
Here’s where we’re at and where we might be going in this sordid affair.
A timeline of Abrego Garcia’s case
To recap, the government sent Abrego Garcia to El Salvador last month even though it has since admitted that it lacked the legal authority to do so (officials have maintained they could’ve sent him elsewhere, but they acknowledge that an immigration judge’s 2019 order barred his removal to the very country to which they sent him, where he’s reportedly been held in a notorious prison).
Earlier this month, U.S. District Judge Paula Xinis ordered the government to “facilitate and effectuate” his return, and Trump officials fought her order all the way to the Supreme Court. The justices mostly vindicated the Obama-appointed judge last Thursday, saying that her 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.” But they also said Xinis’ use of the word “effectuate” might have exceeded her authority, so they sent the case back to her to clarify what she meant, adding that she needs to afford “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” while the government “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
Had the Supreme Court taken a more direct stance last week against official attempts to avoid compliance, Abrego Garcia could’ve been back by now.
Xinis quickly amended her order to basically drop the “effectuate” part, so her latest order is to “DIRECT that [government] Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” She also ordered the government to provide details regarding Abrego Garcia’s current location and custodial status, what steps (if any) the U.S. has taken to facilitate his immediate return, and what further steps the U.S. will take to do so and when. After a hearing Friday at which the government continued to try avoiding sharing details, she issued another order saying the administration failed to comply with her amended order. She instructed officials to provide daily updates going forward.
Those updates have been predictably lacking. Saturday’s report was from an official who said Abrego Garcia is “being held in the Terrorism Confinement Center in El Salvador” and is “alive and secure in that facility,” detained “pursuant to the sovereign, domestic authority of El Salvador.” Sunday’s report (from a different official) said that the U.S. has “no updates for the Court beyond what was provided yesterday.”
Meanwhile, Abrego Garcia’s lawyers pressed Xinis over the weekend for further relief, including for proceedings that could land Trump officials in contempt. Naturally opposing that request, the government’s response highlights how it’s interpreting the Supreme Court order to avoid getting Abrego Garcia back. Regarding its view of its obligations under Xinis’ latest order, Justice Department lawyers wrote in a Sunday filing:
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. . . . On the flipside, reading ‘facilitate’ as requiring something more than domestic measures would not only flout the Supreme Court’s order, but also violate the separation of powers.
While that position is clearly contrary to Xinis’ order to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” it’s also hard to square with the Supreme Court’s command “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.” Of course, the justices can speak for themselves on the subject — and they might have to again soon.
In the meantime, Abrego Garcia is confined in a country to which the government has admitted it should not have sent him. Again, this is the government’s fault. But had the Supreme Court taken a more direct stance last week against official attempts to avoid compliance, he could’ve been back by now.
‘Extraordinary threat to the rule of law’
However theoretically well-founded the Supreme Court’s order was, it was inevitably going to be used to attempt to avoid bringing Abrego Garcia back. Unsurprisingly, the government quoted to Xinis the Supreme Court’s reminder that she needs to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” and that the government “should” share “what it can” about its ongoing efforts — which the government is citing to share little if anything at all.
Sotomayor’s recent writings presaged this latest defiance. What’s slightly more perplexing than the government’s defiance of Xinis is that its stance is in tension with the Supreme Court majority, too. On Monday last week in the separate case (with similar themes) over President Donald Trump’s deportation authority under the Alien Enemies Act, where the government also appeared to defy court orders from a different judge (who could issue a contempt ruling anytime), the justice criticized the majority’s intervention on the government’s behalf, writing: “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law.” Likewise in Abrego Garcia’s case on Thursday, she said she would’ve let Xinis’ order go forward undisturbed, while noting the government’s extreme positions in this litigation and concluding: “In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.” The administration’s latest conduct before Xinis makes Sotomayor’s warning prescient. But what’s slightly more perplexing than the government’s defiance of Xinis is that its stance is in tension with the Supreme Court majority, too. We may have to see what the Republican-appointed justices themselves have to say about that. At this rate, although the administration could seemingly end all this diplomatically in a matter of hours, it’s unclear how the case will be resolved without another high court trip. If one comes, the majority could be confronted with the weaknesses of its order and, if it cares about holding the government to its burden, it might have to issue a stronger one. Xinis set the next hearing for Tuesday, at which she will likely press the government for answers again, as she did on Friday, though we have little reason to expect any answers to come willingly. As the first round at the high court showed, the best course could be for the justices to let whatever Xinis orders next simply take effect, if anything less would lead to further complicating this situation that could’ve and should’ve been resolved long ago. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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