Between the non-responsive, if downright moronic, updates tendered by the government as to the status of Kilmar Armando Abrego Garcia, and the show pony press conference with peculiarly attired Salvadorean President Nayib Bukele, Trump has taken his stand.
The message from the meeting was clear: Neither Mr. Trump nor Mr. Bukele had any intention of returning Mr. Abrego Garcia, even though the Supreme Court has ruled that he should come back to the United States. The case has come to symbolize Mr. Trump’s defiance of the courts and his willingness to deport people without due process.
The question posed to Bukele, whether he will “return him” was the wrong question.** The question that should have been asked is whether he would turn Abrego Garcia over to the custody of the United States if Trump asked. Then again, poorly framed question aside, Bukele’s response was an SNL cold open script. Little Marco followed it up with stunningly simplistic nonsense that he certainly knows to be false, but passes for civics in this Oval Office.
But what about the courts? Trump isn’t selling his stance to the faithful as defiance, with Stephen Miller pretending that Trump won before the Supreme Court 9-0.
In an Oval Office photo-op with El Salvador’s President Nayib Bukele on Monday, Trump and Miller — along with Attorney General Pam Bondi — continued to pretend that the administration won at the Supreme Court, with both agreeing that the decision was 9-0 “in our favor.” Miller claimed that the high court found “no district court has the power to compel the foreign policy function of the United States,” while Bondi claimed that the U.S. only had to worry about bringing Abrego Garcia back if El Salvador released him first.
Miller may be venal, but he’s hardly stupid. The jury is still out on Bondi. But the point is clear, that Trump’s position is that the Supreme Court’s equivocal decision failed to support Judge Paula Xinis, and that it left him enough room to pretend that he’s not defying the judge, and creating a constitutional crisis, by refusing to do anything to bring Abrego Garcia back to the United States.
Judge Xinis is in the awkward position now of either acquiescing to the administration’s refusal to abide by her orders or taking action that would bring the crisis to the surface. She could order a hearing, requiring senior officials, perhaps even the president, to testify as to their lack of compliance with her orders, which would almost certainly be refused. She could hold someone in contempt, from the lowly AUSA in the courtroom to a cabinet secretary, which would require that someone under the auspices of the Executive physically take action. Or she could let the administration have its way and pull back from the edge, leaving Abrego Garcia in prison, likely for life, with no hope.
Trump has made the dubious claim that he would comply with a decision of the Supreme Court, because he claims he “respects” it, meaning that he believes he owns it, but not the order of some lowly district court judge.
“If the Supreme Court said bring somebody back, I would do that,” Trump said. “I respect the Supreme Court.”
Of course, if the Supreme Court actually ordered him to effectuate the return of Abrego Garcia, whether he would do so remains a mystery. Trump says a lot of things that he fails to do. But the point is that while the Supreme Court did, plainly, order Trump to “facilitate” Abrego Garcia’s return, its equivocal language about effectuating the return gave the administration a crack to exploit in its refusal to comply. From the perspective of Miller, this was all the room he needed to claim victory.
As the matter is back before the court, this time with the presser before it including Bukele’s nonsensical answer that he can’t “smuggle a terrorist” into the United States and Trump’s bobble-headed approval, what’s left for Judge Xinis to do? What order should she make in light of the near-certainty that Trump will fail to comply in this “battle of wills” between the unitary executive and the coequal judicial branch of government?
The Supreme Court could have avoided this confrontation had it answered its own question as to what was required of the president rather than kick the can back to Xinis. It did not. This may well be Chief Justice Roberts’ attempt to protect the institutional integrity of the Supreme Court by not issuing a decision that the president would defy, but it has long been clear that the constitutional crisis arising from Trump’s refusal to obey the orders of the court would ultimately bring the crisis to a head no matter what.
Was the Supreme Court wrong to give Trump a crack to weasel through in the vain hope that maybe, just maybe, he wouldn’t defy the court? What’s Judge Xinis to do now that the Supreme Court has hung her out to dry? If we’re doomed to a constitutional crisis no matter what, is it better that the judiciary pretend it’s not a fait accompli in the hope that Trump will somehow come to his senses and not blow up the Constitution, or should it have backed its judge and not given Trump the opportunity to pretend he’s not telling Judge Xinis “fuck you”?
- Tuesday Talk rules apply, within reason. Crazy will not be tolerated.
**By posing the question to Bukele of whether he will “return” Abrego Garcia, the media failed to address the nuance upon which Trump relies. The better questions would have been directed to Trump:
President Trump, have you asked President Bukele for the release of Abrego Garcia into American custody? If so, did President Bukele refuse? If not, why not?
Unfortunately, the journalists allowed into presser failed to ask these questions.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I loathe Trump and his administration, to be clear, but I’m having trouble understanding what the courts can do in this situation.
Foreign policy seems to be solely within the executive branch’s purview. Courts can’t compel the executive branch to conduct foreign policy in any particular way. For example, lets say that the U.S, accidentally deported someone to China. China won’t return the wrongfully-deported person. In this scenario, no one would reasonably expect courts to instruct the executive on how or when to negotiate with China. With El Salvador, the international power dynamics are different than with China; we all know Trump could have Abego Garcia on a plane home within minutes. But the principle remains the same.
So what can courts do? Is this a constitutional loophole? If the executive branch deprives even American citizens of due process, drops them into a foreign prison, and shrugs its shoulders because the foreign prison won’t give the Americans back, can that only be solved by impeachment? I’m at a loss.
One difference is that El Salvador is being paid to hold these people under a contract with the United States. While this contract hasn’t yet been made public, contrary to law, it’s evidence that Abrego Garcia is being held not because El Salvador cares, but because the US has ordered them to.
For someone who claims to loathe Trump, you’ve gone pretty far down the MAGA rabbit hole. This has nothing to do with conducting foreign policy. This has to do with the government of the United States, which is unquestionably subject to the jurisdiction of the court, making a good faith effort to correct its admitted mistake by requesting that Abrego Garcia be released back to the US. There are two things required of the US: make a real effort to secure his return and don’t violate the law any further. Both of these things are entirely within the court’s jurisdiction.
To make it even less about foreign policy, the relationship is contractual as Jeff notes, with El Salvador being paid to hold prisoners at the behest of the US. It’s just a contract, like any other. El Salvador sold prison space to the US for $6 million. There is no foreign policy implication here at all.
The AP reported on 3/16/25 on a memo from El Salvador’s foreign ministry stating in part, “The Republic of El Salvador confirms it will house these individuals for one (1) year, pending the United States’ decision on their long term disposition.” When a bailor entrusts property to a bailee, the bailor has a contractual right to take back custody of the property. The same principle should apply to a contract for housing prisoners. The district court should assume the government’s contract with El Salvador for housing prisoners expresses or implies a right to take back custody of the prisoners and order the government to notify El Salvador that the U.S. is exercising its right to take back custody of this particular prisoner on a date certain. The district court should hold that its order does not infringe on the executive’s power to manage foreign relations because it merely requires the executive to exercise its contractual rights. If El Salvador refuses and breaches the contract, that would create a foreign relations issue, but the district could should assume El Salvador will honor its contractual obligations.
The article stated that the “these people” in your quote were Venezuelan TdR gang members. “President Donald Trump’s administration will pay El Salvador $6 million to imprison for one year about 300 alleged members of the Venezuelan Tren de Aragua gang, in one of the first instances of the Central American country taking migrants from the United States.” Garcia is not Venezuelan & not alleged to be a member of TdR, he is a citizen of El Salvador & alleged to be a MS-13 gang member. While there are assertions, there does not appear to be any actual evidence of an agreement between the US and El Salvador concerning the custody of Garcia. It seems like clarification of that matter should precede judicial reliance on it.
If the feckless Republicans in Congress are any clue, the only choice is to bring it to a head. Maje the order, let hom defying it, so at least we know where we are. The GOP has become totally captured by Trump precisely because they tried to avoid the confrontation, so as not to get primaries by more radical Trumpers. If you end up doing whatever he says anyway, then there is functionally no difference.
Well, the Court has the same choice. Make the call, or be cucked just like Congress. The Constitutional crisis is here, right now, in multiple venues. Quit dicking around and acting like it’s not here, because it’s here.
Having said that, if the Republic survives this, I hope this is a chance to do away with the presumption of regularity entirely. Nothing this administration has done has been in good faith in any of its actions, so it’s time that courts stop pretending that gov’t actors generally act with fidelity to the law.
In as much as the Administration neither effecutated nor facilitated, the wordplay is irrelevant.
I know the courts limit themselves to matters that come to them in the ordinary way, but maybe CJ Roberts could make a speech somewhere noting that although the President has immunity, his minions do not, nor do the attorneys at DoJ, that deporting people without a hearing and selling them into slavery is kidnapping.
District judges have life tenure for a reason. It enables (and is intended to enable) them to make the decision they believe to be legally correct. Maybe the higher courts won’t support it, and it will die on the vine under the boot of executive defiance. The district court is responsible for ruling in the case before it, not for saving the world, nor for fending off perceived threats of “crisis” between the executive and the higher courts. It all comes down to doing the job, and letting the chips fall where they may.
An unpopular view but relying on Tuesday Talk rules:
The Trump administration is to blame for the dilemma they are in and Judge Xinis is to blame for the dilemma she is in. While others contributed to the dilemma, the Trump administration decided to forgo the application of due process (regardless of any dispute as to what process was due) which is Constitutionally required any time the government deprives any person of life, liberty or property and Judge Xinis decided to forgo a detached judicial approach to the case. Without knowing the facts regarding any alleged contract or agreement between the US & El Salvador respecting El Salvador’s custody of Garcia, Judge Xinis Ordered the government to “facilitate and effectuate” Garcias return to the US. She issued the order on a Friday and Ordered compliance by the following Monday. Arguably, this could include action up to and including an armed military incursion into El Salvador to satisfy the Order. On application for a stay, SCOTUS expressly “granted in part and denied in part, subject to the direction of this order.” Part of the direction of the order was that the “District Court should clarify its directive with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” SCOTUS issued its Decision in the evening and even later that evening Judge Xinis issued an Order claiming that SCOTUS “affirmed this Court’s Order” and required the government to file a pleading by 9:30 the following morning that included what “steps Defendants will take, and when, to facilitate [Garcia’s] return.” Judge Xinis has yet to “clarify [her] directive with due regard for the deference owed to the Executive Branch” as directed by SCOTUS. Rather, she modified her prior order by eliminating the “effectuate” requirement leaving only the “facilitate” requirement. The Trump administration has since filed a pleading that “facilitate” only requires removing any US government barriers to Garcia’s return and that they would further facilitate his return by providing air transportation from El Salvador if the El Salvadorian government released him from their custody.
While I absolutely agree with Judge Xinis’ goal of Garcia’s return as soon as possible, a detached judicial officer should articulate what a party is required to do as opposed to only what result the Court wants to obtain. In aid of that, the Court should order disclosure of what, if any, agreement has been made between the US and El Salvador with respect to the custody of Garcia. Then, if/when the government refuses to provide the disclosure, the proffered justification (state secrets, exclusive Article II powers, whatever) can be litigated and judicially determined and proper judicial Orders can be issued and enforced.
I have seen others question the characterization of Kilmar Armando Abrego Garcia’s removal as a “deportation,” in part because deportations include due process and this removal did not. In a similar context, I was reminded of something Mark Bennett put in a brief once. “How many legs does a dog have if a prosecutor calls a tail a leg?” Is there something to this line of questioning, in the “deportation” context?
I ask because deportation is the word the Trump/MAGA monolith uses. I notice the Supreme Court order characterized it as a removal, not deportation, as well.
[Ed. Note: “Removal” is the technical word for deportation.]
While the existing per curiam order certainly leaves something to be desired, your post seems to assume (dare I say) that this kerfuffle could have been avoided had the Supreme Court mustered the intestinal and institutional fortitude to issue a strong*er*-worded unsigned shadow docket order.
I cannot help but wonder, however, if this was SCOTUS’s way of saying: “You brought this on yourself.” Rather than using adult terms like “effectuate” and “facilitate,” the district court could (should?) have used far more simpler language, such as borrowing from habeas corpus proceedings: “Bring us the body” or, because Latin, “nobis corpus.” It’s clear and concise, not unlike James Bailey’s succinct letter.
I think it’s becoming more and more clear that the Supreme Court wasn’t set up to handle this scenario. More accurately, the courts in general here aren’t well-prepared for someone like Trump, as we saw with his escape from criminal prosecution. The Framers expected that there would always be a power struggle between the Executive and the Legislative branches, that they would be reticent to ever concede power to each other, and that this would be the ultimate check on each of them. The Court’s job was essentially to be a referee between the two. I’m not sure the Framers expected one branch to so thoroughly dominate the other to the point of absolute capitulation as we are now seeing.
In the context of this struggle, many of the Roberts court’s decisions make sense. They generally have a Constitutional respect for separation of powers, because those powers were expected to be in a balanced conflict. I’m not sure if it’s here or Popehat, but the notion of avoiding making TrumpLaw was a big point that was made, and I think it’s generally a good point. On average, you acknowledge that someone is play games, but you accept a few unjust outcomes because doing so works out better in the average case. But, when Trump (or his minions, really) fashions cases to take advantage of this correct impulse, he is able to take advantage of the principle to consolidate power.
Take the extant case, for instance. It makes sense to say, in general, that the courts should avoid directing foreign policy outcomes. That’s just common sense. But here, the arguments being proffered by the admin are utterly facile. No one who isn’t blinded by MAGA really believes that the administration can’t get this guy back. No one believes the most powerful country in the world economically and militarily is completely impotent to impose any kind of pressure to get one guy back from a prison from a country that is heavily cooperating with the administration. No one believes that at all, because it’s absurd. In this case, ordering the administration to actually get him back is reasonable, because they can so clearly do it. That’s the tack that Judge Xinis is taking, she sees reality for what it is. But, the “correct” general solution is for the court to say it shouldn’t dictate outcomes in interactions with foreign governments. TrumpLaw says you shouldn’t ignore the general case just because “Trump”, so, here we are.
I suspect that this particular outcome was engineered, ultimately. Maybe not with this specific person, but the administration knew when it entered into this agreement with El Salvador that it was going to fuck up and deport the wrong person. So it acted with haste, specifically to engineer this “crisis” where it “can’t force another country to do something,” just to get a court case that says so. Trump is playing games with the courts, and Roberts needs to wise up to it. Roberts is making the right moves for the country for when it has a functional legislative branch, but not for when the Executive has defeated that branch and is moving to consolidate all power under one person. He’s got to wake up and see reality, that this administration is acting in bad faith at every turn to ultimately neutralize all opposition, and that Trump is using the Court to give these efforts a veneer of legitimacy.
Roberts isn’t stupid. He has to see what is going on. I just hope he figures out some way to draw a principled decision that simultaneously avoids TrumpLaw which also stops enabling the administration’s bad faith moves. Roberts still has to count on Congress to make the move and put a stop to this, but he’s got to give them the decision on which to do it. If they choose not to do anything, fine, but he can’t keep operating under the normal rules, because they simply don’t apply at this moment. He’s got to recognize this, because this case, more than any of the others, makes it painfully clear what can and will happen to US citizens if he fucks it up. This is his Dred Scott moment. Don’t fuck it up like Taney did.
SCOTUS’ idiotic ruling on presidential immunity paved the road and now Il Douche is driving on it at break-neck speed. No court can stop him. Worse yet, Congress has cowtowed and WON’T stop him!
But, we were warned and elected him anyway.
The situation is horrifying. The Supreme Court didn’t help, but at least it punted rather than concede. If the issue comes back before it with a better record, it must do the correct thing and order the man’s return and hold the administration accountable. The only hope then would be the executive purges the contempt. Otherwise, it’s not a matter the courts can solve, and so much for the Republic.
It seems as though Judge Xinis received the message and is ordering depositions to establish a record of contumacy if it can be had. I can’t look away from the developing crisis. Every step forward seems to push us closer to lawlessness. I’d welcome the realization that I’m overreacting, if only.