SCOTUS Takes a Stand
A unanimous Supreme Court has ordered the administration to comply with a lower court order.
AP (“Supreme Court says Trump administration must work to bring back mistakenly deported Maryland man“):
The Supreme Court on Thursday said the Trump administration must work to bring back a Maryland man who was mistakenly deported to prison in El Salvador, rejecting the administration’s emergency appeal.
The court acted in the case of Kilmar Abrego Garcia, a Salvadoran citizen who had an immigration court order preventing his deportation to his native country over fears he would face persecution from local gangs.
U.S. District Judge Paula Xinis had ordered Abrego Garcia, now being held in a notorious Salvadoran prison, returned to the United States by midnight Monday.
“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 court said in an unsigned order with no noted dissents.
It comes after a string of rulings on the court’s emergency docket where the conservative majority has at least partially sided with Trump amid a wave of lower court orders slowing the president’s sweeping agenda.
In Thursday’s case, Chief Justice John Roberts had already pushed back Xinis’ deadline. The justices also said that her order must now be clarified to make sure it doesn’t intrude into executive branch power over foreign affairs, since Abrego Garcia is being held abroad. The court said the Trump administration should also be prepared to share what steps it has taken to try to get him back — and what more it could potentially do.
The administration claims Abrego Garcia is a member of the MS-13 gang, though he has never been charged with or convicted of a crime. His attorneys said there is no evidence he was in MS-13.
The administration has conceded that it made a mistake in sending him to El Salvador, but argued that it no longer could do anything about it.
The court’s liberal justices said the administration should have hastened to correct “its egregious error” and was “plainly wrong” to suggest it could not bring him home.
“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,” Justice Sonia Sotomayor wrote, joined by her two colleagues.
Abrego Garcia’s wife, Jennifer Vasquez Sura, said the ordeal has been an “emotional rollercoaster” for their family and the entire community.
“I am anxiously waiting for Kilmar to be here in my arms, and in our home putting our children to bed, knowing this nightmare is almost at its end. I will continue fighting until my husband is home,” she said.
One of his lawyers, Simon Sandoval-Moshenburg, said “tonight, the rule of law prevailed,” and he encouraged the government to “stop wasting time and get moving.”
The Atlantic’s Adam Serwer had the same reaction I did: “The Confrontation Between Trump and the Supreme Court Has Arrived.”
America has reached a very dangerous moment, as the Supreme Court’s indulgence of President Donald Trump’s belief in his own untrammeled authority collides with the justices’ expectation that he will abide by their decisions.
[…]
The fact that the order was issued without dissent was remarkable. The Roberts Court has indulged Trump at nearly every turn, first writing the anti-insurrection clause out of the Fourteenth Amendment and then foiling his federal prosecution by inventing a grant of presidential immunity with no basis in the text of the Constitution. Justice John Roberts and his colleagues have deployed a selective proceduralism to avoid directly confronting the Trump administration, one that contrasts with their alacrity in cases where they are seeking their preferred outcome. Yet the confrontation they sought to avoid has arrived nonetheless, and even the Trumpiest justices, such as Samuel Alito and Clarence Thomas, joined their colleagues in informing the Trump administration that what it had done was illegal and should be remedied.
Abrego Garcia has lived in the U.S. for more than a decade and has no criminal record. He is married to a U.S. citizen and has an American child, and the only evidence the administration has produced to link him to gangs is a single allegation from an anonymous informant in 2019. Due process exists because the state is supposed to prove its allegations against you before depriving you of life and liberty. The Constitution envisions law enforcement as flawed and subject to potential abuse, not as infallible.
[…]
Although the high court did precisely what it should in such a circumstance, the justices are nevertheless taking an enormous political risk. Trump acolytes have publicly and repeatedly floated the idea of defying court orders with which they disagree. By some accounts, they may already have done so in this case, ignoring a federal judge’s verbal directive to turn back the plane carrying men sent to CECOT—90 percent of whom lack a criminal record, and 100 percent of whom were deported without due process. (The administration insists that it was following the judge’s written directive.) If Trump defies the Court here, then America will have taken an important step toward authoritarianism and anti-constitutional government. The stakes of the case may explain the lack of dissent, a clear show of force—the justices have no power in a system in which court orders are optional.
The consequences of this evening’s ruling are difficult to predict. The Trump administration could choose to comply with the court order and secure Abrego Garcia’s return. It could also choose the path of open defiance. But it might instead make a token effort to retrieve Abrego Garcia and then shrug, telling the Court that it tried its best but was unsuccessful. The Salvadoran government has declared that anyone who is imprisoned at CECOT will never leave—if Abrego Garcia returns, he could speak out about the conditions he experienced at the facility, which could have political consequences both for the Salvadoran leadership and for the Trump administration.
If the Trump administration retains the ability to send anyone in the United States to be imprisoned abroad, then the rights of American citizens, and not just immigrants and the undocumented, are meaningless. If the administration makes an insincere effort to bring Abrego Garcia back, then those rights become the very sort of “parchment barriers” James Madison feared would be easily violated. If Trump defies the Court, there is little to restrain him from acting as an autocrat, given the supplication of Republicans in Congress.
The risks here for constitutional government are tremendous. Yet even if this case now unfolds in the ideal way, Trump’s aspirations toward unchecked power mean that the nation will never veer too far from the “path of perfect lawlessness,” at least not as long as he remains in office.
I suspect that this will not be the hill the administration chooses to die on in thwarting the Supreme Court, but we’ll see soon enough. If this order is flouted, we have a genuine Constitutional crisis. If the President can deport a legal resident on his own authority—let alone in defiance of the orders of the highest court in the land—any pretense of democracy and civil liberties is gone.
That the ruling was unanimous is refreshing. In the Court’s heyday, Chief Justices Earl Warren and Warren Burger worked diligently to craft opinions in the most controversial cases that could attract the votes of all nine Justices. They reasoned that, if the courts were going to issue public policy mandates that overruled the elected branches, they needed the legitimacy that came with unanimity. Desegregating the schools or ordering the President to turn over tapes that would potentially lead to impeachment could not be done on a party-line or ideological basis. Hopefully, the fact that even Thomas and Alito thought this was a bridge too far will cause the administration to back down.
Law Dork’s Chris Geidner notes that
Judge Paula Xinis issued an order following Thursday night’s Supreme Court ruling, ordering the government to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible” and scheduling a status conference in the case for 1 p.m. Friday.
Additionally, Xinis ordered the Justice Department to file a declaration by 9:30 a.m. Friday detailing where Abrego Garcia is and what steps have been and will be taken to facilitate his return.
So, we’ll know soon enough how the administration will proceed.
For the most part what we have witnessed for the past 25 years, is an increasing “party line” politicized vote from SCOTUS. And responsibility for departure from normative, truly “Constitutionally” based decision making, has largely fallen upon the “activist” Republican members of the Court, who have twisted themselves into pretzels attempting to rationalize their cognitively conflicted motives.
That SCOTUS now, at this point, comes up with a unanimous decision after the Republican members have expended so much effort “greasing the skids” in support of unitary executive power, can mean only one thing: self preservation. The red-line for the MAGA SCOTUS cohort is self-relevancy. It was the bridge too far.
I don’t think Trump has to openly defy the court. “We tried (sort of, at least) but can’t get it done” will be enough of a wink wink for the MAGAts and allow SCOTUS cover.
And the issue will never be “outrageous” enough to force Congress to weigh in, furrowed brows notwithstanding.
An act committed by the administration that was so indefensibly wrong that Justices Alito and Thomas, the two Justices most smitten by indefensible actions, joined to make a unanimous ruling against their orange potentate.
@just nutha: I fear you’re right here. Asha Rangappa had similar post, to your point:
POST
In the responses, a few commenters point out that probably best way to put pressure on is to point out how failure to get him back shows how weak Trump is if Bukele says no.
I hate that it’s news the Supremes unanimously ruled in favor of black letter law. Or had to. Over at Volokh Ilya Somin summarizes nicely
I fear Trump would see bringing the guy back as a loss of face, so they’ll drag this out forever. Somin points out that this silliness over facilitate/effectuate is why people hate lawyers.
@gVOR10: I don’t see Trump defying the SCOTUS on this one. He can quietly bring the guy back, on a midnight flight, and stir up some other crap to dominate the news that day and it’s over.
Normally I don’t see Trump as a “pick your battles” guy, but he needs SCOTUS for much more important things right now.
I’m aware of the challenges of secession but at what point do the people have a moral imperative to formally separate themselves from this sort of evil? Surely there is a limit to how much a state will accept before the stain of association becomes too much.
@Rob1:
I think that’s right. What scares Roberts is going down in history as the Chief Justice who destroyed his own institution. Institutional auto-castration, a process Congress has already undergone.
The regime’s defense is more or less like sure we locked a guy up who is innocent, but we lost the key. You can order the executive to release him, but you can’t order the executive to hire a locksmith–that involves disbursement of funds, which is entirely the executive’s role.
The right wing Supreme Court usually goes for this ‘logic’. Let’s hope that this is the first of many bridge too fars.
That arrived when the MAGA Court’s dishonest, corrupt Federalist Society hacks — who will go down in American history as amongst our worst political villains — rewrote the Constitution to say it’s okay for a Republican president to crime, as long as he claims his thuggery is within his scope of duty. (So the Court’s fake originalists/textualists could protect the narcissistic orange rapist from legal accountability for inciting a terror attack on Congress.)
What’s stopping Trump from claiming he has to disappear legal residents, and citizens, in defiance of law because his job duties require such a fascist crime?
Who’s not stopping him: John Roberts, Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett — and the unpatriotic citizens who put in these clowns in place by voting for Republican senators. Deplorable.
@LongtimeListener: Supposedly, the US contracted with El Salvador to take these prisoner. Contracts (even those with foreign governments) are subject to the Freedom of Information Act. That request needs to happen regardless. Trump Admin will resist on national security, foreign relations grounds but that doesn’t mean it shouldn’t happen.
“Hopefully, the fact that even Thomas and Scalia thought this was a bridge too far will cause the administration to back down.”
Not to quibble, but the proofreader in me notes that Scalia passed away in 2016. I think the intended Justice was Alito.
@Winecoff46: I’ve done the same thing. It’s because they’re interchangeable in my mind. Both eager to use “originalism” in the way its inventors intended, as a tool for overturning precedent in favor of conservatives’ preferred outcomes. There’s a reason they’re called Scalito.
By the way, if President Trump REALLY wants to provoke a Constitutional crisis – he is mighty proactive, after all, when he wants to be – he could simply issue an Executive Order “decertifying” the Supreme Court under one or more nebulous, and obviously untested, legal theories. (He could even announce that his order would be effective nunc pro tunc to an earlier date). He could then announce that he is the sole arbiter of what is Constitutional. This would REALLY be an attack on the SCT, which said years ago that IT was the sole arbiter. But his position would be that if the Court doesn’t exist, it CAN’T resolve whether decertification is possible. (Plan B would be to claim that any challenge to such an order invoked the “political question” doctrine and was, therefore, nonjusticiable, even if the SCT did exist.) He could then ignore any SCT ruling and claim the Court no longer existed.
An EO (not even a law) “decertifying” a court established expressly by the Constitution would, of course, be completely unconstitutional. But it would make for a spicy Constitutional crisis. And if 4 advisers told him he cannot do that, but the last one to speak to him urged him to go for it, well . . . maybe that’s why the recent SCT ruling was unanimous.
@gVOR10: Agreed. Same here.