143. The State of Play in the Abrego Garcia Case

The Trump administration isn't defying the letter of Thursday's Supreme Court ruling. But it's daring the federal courts to take much more aggressive steps to block its immigration policies.

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Monday brought a ton of headlines, many of them misleading, respecting the various statements made by President Trump and Salvadoran President Nayib Bukele about the fate of Kilmar Armando Abrego Garcia—the Salvadoran national who the Trump administration wrongfully removed from the United States in March and who, according to the Justice Department, remains imprisoned in the CECOT mega-jail in El Salvador. Given last Thursday’s Supreme Court ruling, many of the headlines suggested that Trump is openly, if not gleefully, defying the Court. Other stories seemed to accept, without any real challenge, the government’s suggestion that it’s powerless to do anything about Abrego Garcia’s fate—and that the federal courts therefore are, as well.

I’ve written before about both the background of the case and Thursday night’s (unanimous) ruling by the justices, and won’t rehash those analyses here. Rather, I wanted to ask and try to answer three questions about what is happening, and what is likely to happen next—that is, about what Trump is (or, really, isn’t) doing; what Judge Xinis might do next in Abrego Garcia’s case, specifically; and what the federal courts might (and, indeed, should) do in immigration cases more generally if the government keeps up its (mockingly) lawless behavior.

1: Is the Trump administration defying the Supreme Court?

In spirit, yes; directly, no.

As I explained last Friday, the central problem with the Supreme Court’s ruling on Thursday night, in which the justices unanimously affirmed the power of federal courts to review Abrego Garcia’s detention and to order the government to at least attempt to return Abrego Garcia to the United States, is that it left a little bit of wiggle room—by (1) not mandating Abrego Garcia’s return; (2) not setting any deadline for any next steps; and (3) using malleable language (“facilitate”) to describe the government’s underlying obligation. Critically, the Court “affirmed” the heart of Judge Xinis’s order that the government has such an obligation. But it also was deliberately vague about the scope of that obligation—especially as balanced against “the deference owed to the Executive Branch in the conduct of foreign affairs.”

To be clear, the Trump administration, and especially Stephen Miller, keeps mis-describing what the Supreme Court actually ruled last Thursday. Miller, for instance, has publicly claimed that the Court unanimously rejected the power of federal courts to intervene in this case—which is laughably and demonstrably false. (From the Court’s opinion: “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.”).

And the Justice Department’s foot-dragging before Judge Paula Xinis (the Maryland district judge presiding over the case on remand) has been unquestionably inconsistent with the spirit of the Court’s ruling. But at least some of this mess is the Supreme Court’s fault. If the government had actually attempted to do everything within its power to “facilitate” Abrego Garcia’s return, and it simply was unable to do so, then that would be entirely consistent with the Supreme Court’s mandate. The problem is that, thanks at least in part to the government’s own public behavior both before Thursday’s ruling and since, no one actually believes that the government is making even modest efforts—let alone exhaustive ones—to comply.

2: Can a federal court order the government to invade El Salvador?

Of course not, but that’s not the point.

In a Tuesday morning tweet, Vice President Vance rhetorically asked a critic whether they were “proposing that we invade El Salvador to retrieve a gang member with no legal right to be in our country?” Leaving aside that there actually is a statute on the books that requires the use of military force against a foreign government in an analogous circumstance, this is a ridiculous strawman. If a federal court orders a defendant to take all lawfully available steps to remedy an ongoing legal violation, the defendant has an obligation to do so—even if those lawful steps turn out to be insufficient. So, for instance, a federal court could order the government to request Abrego Garcia’s return. A federal court could order the government to stop paying El Salvador to detain Abrego Garcia. A federal court could order the government to pursue any and all diplomatic means to “effectuate” Abrego Garcia’s return. And it could require a senior government official with direct knowledge of the facts to testify as to what efforts the government has (and has not) made in this case—and, to illustrate the distinction, what efforts the government has made in other, prior cases where it has been able to get folks back who were wrongfully removed, extradited, or otherwise transferred.

Finally, even if a federal court can’t order the government to invade El Salvador, it can at least attempt to impose consequences on the government for failing to take all possible steps to procure Abrego Garcia’s release. Thus, a court could consider monetary sanctions (against Secretary Noem, for example) if, by a specific date, the United States hasn’t, in the judge’s view, done everything lawfully possible in this case. The sanctions thus become the incentive for more aggressive efforts at “facilitating” Abrego Garcia’s return. A court could refer lawyers who refuse to follow its instructions or otherwise fail to live up to their obligations of candor to the tribunal to their state bars. And so on. In other words, there’s a wide swath of daylight—and of judicially available relief—between invading El Salvador and just taking the government at its (facially preposterous) claim that it’s totally powerless. (Indeed, if the United States really is totally powerless in this case, what does that say about the Trump administration??)

It wouldn’t surprise me if this is where things go in court—with Judge Xinis ratcheting up the pressure on the government, and contemplating, if not imposing, escalating sanctions for every day in which it does nothing to even try to facilitate Abrego Garcia’s return, at least to her satisfaction. (The next hearing before Judge Xinis is set for 4 p.m. today.) That might get this case back to the Supreme Court quickly—where the justices will have to decide what to do now that President Trump has so publicly called their bluff. My suspicion is that even justices who are more sympathetic to the need for deference to the President when it comes to foreign affairs will not take kindly to the conduct we’ve seen since Thursday.

3: Can federal courts prevent other cases like this one?

Yes—and this is perhaps the most important way the courts can impose consequences for the Trump administration’s openly (indeed, mockingly) lawless behavior. For if the Trump administration is going to so publicly take the position that anyone removed from the United States is no longer its responsibility, and that courts are powerless to compel it to take any steps to bring back even those who were removed in error, then it seems like there’s an obvious response from the federal courts: No more removals of anyone until and unless the entire judicial process has run its full course.

That means no more use of the Alien Enemy Act until the Supreme Court (and not just a district court) has specifically ruled on both whether it applies to Tren de Aragua in the first place, and, even if it does, how much process the government must provide to prove that specific individuals are members of TdA (and, thus, removable under the Act). That means no more ordinary removals under the Immigration and Nationality Act (the normal process) until and unless individuals the government claims are subject to removal (like Mahmoud Kahlil) have had a full opportunity to challenge the factual and legal basis for their removal—not just before an executive branch immigration judge, but in an independent federal court. The obvious antidote to post-removal lawlessness and non-compliance is to ramp up pre-removal judicial review. That ought to ensure that there won’t be future cases like Abrego Garcia’s—and it might even provide incentives for the government to behave in his case, too.

***

I’ve thought, from its inception, that Abrego Garcia’s case is as big a test case for the rule of law during the Trump administration as anything else we’ve seen. Part of that is because, if the government can wrongfully remove someone like Abrego Garcia to a Salvadoran prison without any consequence, it can do that to any of us—alleged gang member or not; Salvadoran or not; citizen or not.

But part of it is because Abrego Garcia is also a case about what, historically, has been a gray area when it comes to the relationship between the federal courts and the executive branch. Federal courts can’t tell the executive branch what to do, but they can tell it what it can’t do, and they can provide increasingly powerful incentives for the executive branch to choose to take specific steps on its own. Maybe those incentives can’t come in Abrego Garcia’s case, specifically. But the government simply can’t afford to alienate the entire federal judiciary. And a world in which the federal courts become reflexively skeptical of any effort to remove anyone from the United States is one in which the Trump administration’s deceptive and deceitful conduct in this one case will prevent it from accomplishing many of its broader immigration policy goals. Of course, Trump and his advisers might think that’s a price worth paying. But like so much of their behavior in this case to this point, that, too, would be revealing.

[Note: An edited version of this post also appears in The Atlantic.]