141. Abrego Garcia and the Presumption of Regularity

How one reads Thursday's ruling ordering the federal government to "facilitate" Abrego Garcia's return depends upon how much (or how little) one expects *this* administration to turn square corners.

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

I wanted to put out an extra issue this morning not so much to summarize what the Supreme Court held last night in the Abrego Garcia case (that’s what media outlets are for), but to reflect on why there’s a fair amount of confusion over exactly what it means—and, as such, a wide range of reactions to the ruling. Part of the problem is the ruling itself, which, as I noted in CNN’s coverage of it, is “maddeningly vague.” But the post that follows suggests that the deeper problem is that many (if not most) of us just don’t trust the Trump administration to behave on remand—which necessarily colors our view of the significance (and scope) of the wiggle room that last night’s ruling creates even as it unanimously rejected the broadest and most alarming claim put forth by the government. To tie this to a legal concept, the problem here is the “presumption of regularity”—and how little the current Justice Department ought to be entitled to it.

Let’s start with the ruling itself. Recall that Judge Xinis had ordered the government to return Abrego Garcia to the United States by 11:59 p.m. this Monday (April 7); that the Fourth Circuit had denied the government’s application to freeze that order; and that Chief Justice Roberts had entered an “administrative” stay Monday afternoon temporarily pausing that deadline while the full Court considered the Trump administration’s request to suspend it indefinitely. Against that backdrop, here’s the key passage of the ruling the Court handed down just before 7 p.m. ET on Thursday, emphases mine:

Due to the administrative stay issued by The Chief Justice,[¹] the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. 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, the government remains under the obligation Judge Xinis initially imposed to “facilitate” Abrego Garcia’s return, but not necessarily to “effectuate” it. Of note, Judge Xinis has already scheduled a hearing for this afternoon on what should happen next.

As Justice Sotomayor’s separate “statement” (joined in full by Justices Kagan and Jackson) notes, this order necessarily rejects the government’s principal argument—that “United States courts cannot grant relief once a deportee crosses the border.” Just as Monday’s ruling in J.G.G. rejected the government’s argument that individuals subject to the Alien Enemy Act are not entitled to notice and an opportunity to be heard before being removed, the Court has, once again, unanimously repudiated the extreme claims being advanced by the Trump administration.² And that is unquestionably both (1) correct; and (2) good.

But Abrego Garcia is (for all we know) still being held at the CECOT in El Salvador. And so the question now turns to what arguments the government might be able to make that would require Judge Xinis to show “the deference owed to the Executive Branch in the conduct of foreign affairs.” For instance, what if the government, in response to questions about the arrangement between the United States and President Bukele, invokes the state secrets privilege (as it did before Chief Judge Boasberg in the J.G.G. litigation) to prevent Judge Xinis from answering them (even with respect to information that has already been publicly tweeted by Secretary Rubio)? What if the government instead files declarations from Trump appointees swearing that there are no steps they can take at this point to secure Abrego Garcia’s release, whether or not that is actually true?

In any other administration, we could have at least some confidence that the government would tell the truth when put to its paces. Indeed, in my initial post on this case, I noted how, when the Office of the Solicitor General discovered that it had been not entirely accurate in an earlier case about the process by which the government returns individuals to the United States when they’ve been wrongfully removed, it was transparent about the misstatement and took affirmative steps to remedy it. Governments aren’t perfect, but we (and especially courts) labor under the assumption that they are acting in good faith. But what if they’re not?

My friend and University of Minnesota law professor Alan Rozenshtein wrote about this exact concern in a Lawfare post yesterday, titled “What Happens When Courts Can’t Trust the Executive Branch?” The problem in these cases has everything to do with what courts call the “presumption of regularity,” i.e., the assumption that, all things being equal, government officers act lawfully and government lawyers act truthfully. As Rozenshtein writes,

The presumption serves the institutional needs of both the courts and the executive branch. It prevents courts from constantly becoming entangled in searching inquiries into the internal deliberations and motivations behind every government action. Such inquiries would overburden the courts, undermine the separation of powers, paralyze the executive branch, and chill necessary, lawful government action. While the presumption has never perfectly reflected reality—there have, after all, been plenty of government scandals in American history—it has struck a reasonable balance between judicial oversight and the need to give the government appropriate leeway in carrying out its functions.

The presumption also directly protects the judiciary. By presuming regularity, courts can often avoid direct, politically charged confrontations with the executive branch that they might, as the “least dangerous” branch, ultimately lose. It’s an example of what the legal scholar Alexander Bickel called the “passive virtues”: the courts’ use of doctrines of restraint (such as deference) to preserve their institutional capital.

It would thus make all the sense in the world, during any other administration, to read the Court’s order in Abrego Garcia as a rebuke to the government—one that would quickly lead to Abrego Garcia’s return once the district court properly tailored its inquiry on remand. But the Trump administration is entitled to no such deference—not just in general, but thanks to its behavior in this very case, where, among other things, it has suspended career DOJ lawyers because one of them had the temerity to be candid with Judge Xinis, and where the White House Press Secretary responded to Judge Xinis’s initial ruling by suggesting that “the Judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.”

Indeed, here is the official statement the Department of Justice put out last night in reaction to the Supreme Court’s ruling, which it has claimed is another victory for Trump:

As the Supreme Court correctly recognized, it is the exclusive prerogative of the President to conduct foreign affairs. By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.

We thus come back to the exact same problem with last night’s ruling that I had with Monday’s ruling in the Alien Enemy Act case—that the Court may be splitting the difference in a way that avoids a head-on institutional confrontation, but at the cost of (1) standing up for the lower-court judges who are in the trenches in these cases; and (2) meaningful relief for the actual plaintiffs, given the wiggle room the rulings create (having to file in other courts in J.G.G.; having to go back to Judge Xinis in Abrego Garcia). None of this would be an issue with an executive branch that was actually entitled to the “deference owed to the Executive Branch in the conduct of foreign affairs,” and that could be trusted to be candid about what it could and could not do vis-a-vis the Salvadoran government. But it’s a glaring issue here—one that, as the Justice Department’s statement capitalizes upon, last night’s ruling does nothing at all to dispel.

On Monday, I suggested that the biggest problem with the ruling in the Alien Enemy Act case, which, it should be said, has already reaped positive dividends in district courts in New York and Texas, is that it raises “the alarming possibility that the Court is not, in fact, ready to accept how profound a threat the Trump administration poses to the rule of law—not because the Court is upholding what the government is doing, but because a majority of the justices are willing to let the government win on procedural technicalities in contexts in which the real-world costs are increasingly severe.”

I fear that last night’s ruling in Abrego Garcia is yet another example of the same pattern—and further reason for concern that the Supreme Court thinks it’s better off dancing around the Trump administration than standing up to it more forcefully. There are certainly arguments in support of this kind of slow dance, especially where, as is true with respect to both Monday’s ruling and last night’s, the Court has unanimously rejected the government’s more extravagant and outlandish claims—and underscored the need for meaningful judicial review, even for detainees alleged to be “alien enemies” and/or those held outside the United States. I don’t mean to understate the importance of those interventions—or to downplay the significance of the victories the plaintiffs have achieved by securing them. Indeed, it seems clear beyond peradventure that we’re far better off with these rulings than without them.

But such passive-aggressive rulings also come with costs. And as I sit here on Friday morning, I can’t help thinking about how much those costs keep mounting. Among other things, they do nothing to rebut or repudiate the attacks on district court judges like Judge Xinis and Chief Judge Boasberg—who continue to be the principal guardrails right now standing between us and a full-blown constitutional crisis. And they do nothing to disincentivize the government from continuing to behave this way in future cases—and from disciplining lawyers who don’t tote the party (as opposed to government) line. All the while, Mr. Abrego Garcia, whose removal to El Salvador was unquestionably unlawful, remains in a Salvadoran prison—for who knows how much longer.

Justice Sotomayor closed her separate statement accompanying Thursday’s ruling by suggesting that, “In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.” One might say the same thing about the Supreme Court, too.

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1. Substack won’t let me use small caps, but just for the sake of accuracy, I note that the Court’s rulings render current justices’ last names (and the Chief Justice’s title) that way.

2. Technically, we don’t know that Thursday night’s ruling was unanimous. As I’ve explained before, when the Court doesn’t issue a signed opinion, we can’t ever be sure of the vote count unless enough justices publicly dissent. But it certainly seems unlikely that there were stealth dissents from last night’s order.