The Supreme Court Finally Rules

Late this afternoon, the Supreme Court issued a 9-0 response to the government’s application to vacate federal District Judge Paula Xinis’ order that the Trump administration return Kilmar Abrego Garcia from prison in El Salvador to the United States. Xinis had ordered him returned by the end of the day on Monday. The Supreme Court let him sit for an additional three days before ruling, in the end ordering the government to “facilitate” his return but suggesting they might not need to “effectuate” it.

The difference between those two could determine whether Abrego Garcia spends the rest of his life in prison in El Salvador, charged with no crime and with no prospect or release, or whether he returns to the United States, where he lacks legal status but has filed for asylum based on claims he was being threatened, including with death, by members of the MS-13 gang. It is likely he is now housed in prison with members of that same gang. The key facts in this case are that the government has conceded it made a mistake when it removed him in violation of an administrative judge’s order but has nonetheless refused to return him to the United States.

You can read the Court’s four-page order here. The decision is as follows:

• Because the Monday night deadline for returning Abrego Garcia to the United States is now past, the Court grants the government’s request that it need not comply with the order. 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.

• The rest of the District Court’s order remains in effect, with one hugely important caveat. The Supreme Court says that it “requires clarification on remand.” The Court says it was proper for Judge Xinis to require the Trump administration to “facilitate” Abrego Garcia’s release from custody in El Salvador and handle the case like it would have been had he not been improperly sent to El Salvador. But the Court objects to Judge Xinis’ use of the term “effectuate,” as in the government must bring about his return to the U.S. The Court writes that the term is “unclear, and may exceed the District Court’s authority.” So they order here to clarify what she means on remand, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

• They order that the government, “For its part … should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

If the government were acting in good faith here, this order would probably be fine. But the government has made clear that it is not, showing absolutely no concern about the fact that the “removal to El Salvador was therefore illegal.” Unless the administration suddenly changes its tune, we can expect to see them claim they tried to facilitate but weren’t able to effectuate Abrego Garcia’s release. “Oopsie … Too late,” as El Salvador’s President Nayib Bukele tweeted above a screen grab of a New York Post headline reading, “Fed judge orders deportation flights carrying alleged Venezuelan gangbangers to return to US, blocks Trump from invoking Alien Enemies Act.” Secretary of State Marco Rubio re-tweeted that post, which refers to the Alien Enemies case, not Abrego Garcia’s, from his personal X account.

In other words, the six conservative Justices on the Supreme Court sent Donald Trump’s administration a message that they’re willing to let him get away with it. It’s easy to imagine the Trump administration telling the court they asked the Bukele administration to release Abrego Garcia, but it didn’t happen, and then declining to say more, perhaps invoking the official secrets act. At a minimum, the Supreme Court has given them room to prolong Abrego Garcia’s detention in El Salvador through more proceedings in the district court and another round of appeals.

It’s wrong. And it also means that none of us are safe. If the government can spirit you out of the country before your lawyers can get to court, it’s just too bad. Justice Sotomayor, joined by Justices Kagan and Jackson, made precisely that point in a statement that accompanied the Court’s order, writing that, “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.”

In her statement, Justice Sotomayor made several points it’s difficult to believe all nine justices on the Court couldn’t agree on:

• “The Government has cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it. The Government remains bound by an Immigration Judge’s 2019 order expressly prohibiting Abrego Garcia’s removal to El Salvador because he faced a ‘clear probability of future persecution’ there and ‘demonstrated that [El Salvador’s] authorities were and would be unable or unwilling to protect him.’”

• “Instead of hastening to correct its egregious error, the Government dismissed it as an “oversight.’”

• “The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong.”

None of these statements are even vaguely controversial given the facts and the government’s concessions in this case, but the six conservative Justices refused to sign off on them.

Justice Sotomayor and the others joined in with the Court’s decision. As she explained, she agreed with the Court’s decision that Abrego Garcia was entitled to “all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings …It must also comply with its obligations under the Convention Against Torture.”

Apparently, the government had no difficulty extracting at least one American from inside of the prison where Abrego Garcia is held. Department of Homeland Security Secretary Kristi Noem was able to leave after using this prison backdrop for a photo opportunity. The President would look feckless if the administration tells a federal judge it can’t get its prisoner back, especially since the United States is reportedly footing the $6 million bill for the incarceration of the deportees.

DHS photo by Tia Dufour

On Wednesday, federal judges in New York and Texas ordered the administration to stop deporting Venezuelan immigrants being held in those districts.

The Judges, one appointed by Donald Trump and one by Bill Clinton, were both concerned about the lack of due process being afforded to people before they were deported. In Texas, Judge Rodriguez wrote, “The Supreme Court has established that individuals detained under the Alien Enemies Act “must receive notice … that they are subject to removal under the Act[,]” and the “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” He was referring to the case decided on Monday, Trump v. J. G. G.

Later that day, Aaron Rupar tweeted a video of Attorney General Pam Bondi trying to duck questions about whether the people who have been deported so far are violent criminals. She was asked whether the reporting by 60 Minutes, that 75% of the migrants who were sent to El Salvador did not have criminal records, was true. Her response: “They're not Venezuelan migrants. They're illegal aliens from Venezuela who should not have been in our country.” The reporter quickly followed up, “So you're confirming they didn't commit a crime?” Bondi’s response was to walk away.

No one, let alone the attorney general of the United States, walks away from that question if the answer is that 60 Minutes got it wrong. Her conduct confirms that the government is not acting in good faith when it comes to these deportations. She acts as if these people, human beings, are just props in a political drama she wants a role in.

Dehumanizing these people dehumanizes all of us. They may be deportable. If so, they are subject to deportation proceedings. Some of them may have committed crimes. If so, they should be held accountable in court and face prison if convicted. But using American taxpayer dollars to hold people in an inhumane prison in El Salvador violates all notions of American justice. Treating people like animals is a dangerous warning of where this administration is willing to go.

The Supreme Court—just barely—got it right today. But the danger is far from past. If a person can be swept up and sent to a third country with no right to first argue in court that the government has no right to do that to them, then American citizens or not, we are all vulnerable. It’s as much a danger to you and me as it is to them. This case, and this weak ruling that doesn’t firmly tell the government “No!” is not where it ends. This is where it begins. That means it could get much, much worse as this administration continues.

We’re in this together,

Joyce