What Do “Facilitate” and “Effectuate” Mean?
Some less optimistic thoughts on the SCOTUS ruling.
I agree with James Joyner that the SCOTUS ruling concerning Kilmar Abrego Garcia, whom the Trump administration admits that they mistakenly sent to life imprisonment in El Salvador, is a good outcome. I concur that there is some hope to be derived from the unanimous nature of the order.
But.
But.
I am not so sure that the result is going to be the return of Abrego Garcia. Moreover, I expect that the Trump administration will comply enough to demonstrate that they are not disobeying the high court, but not enough to actually get the man back into the United States.
Let me hasten to add that I hope that I am wrong here.
However, I think it is important to start off from the perspective that the Trump administration has already admitted that they sent him to CECOT by mistake and their response has basically been “oopsie!” alongside a helping of shrugged shoulders and “well, too late now!” There was already a clear callous disregard for due process and basic human rights in the way they dealt with the renditions in the first place.
So, yes, the administration has kind of sort of had their hands slapped by the Supreme Court. And, yes, I hope, because it is the humane thing to do to hope, that Abrego Garcia is returned to his family.
I am heartened that the Court called the removal and deportation of Abrego Garcia “illegal.”
But there are a couple of things that were nagging at the back of my brain about this ruling, even before I read James’ write-up.
Specifically, the following passage from the Court concerns me.
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.
First, there is the practical barrier that Abrego Garcia is being held not by the US government, but by a foreign government. We cannot order El Salvador to do anything. While I accept that if the Trump administration really wants to comply, they could find a way to pressure the Bukele administration to cooperate. But as noted above, I am not sure at all that they care about any of this enough to try all that hard.
Side note: the complexities associated with the courts not having jurisdiction over foreign prisons are why using them is a terrible idea if a person believes in the rule of law and our constitutional order, and why using them is an awesome idea if a person wants to govern outside the law in a dictatorial fashion.
Second, the issue that truly concerns me is located in the bolded portions above.
I expect there to be an additional challenge by the administration that will end up back with SCOTUS over what “facilitate” and “effectuate” mean. Minimal action is likely to suffice.
Worse, however, I think that the administration will ultimately be able to hide behind “the deference owed to the Executive Branch in the conduct of foreign affairs.” Given the expansive immunity powers the majority of SCOTUS has already granted to the Preisdent (and the reasoning they used to do so), I expect that if the administration makes any foreign policy-based argument whatsoever about why they can’t get this man back, then I think that at least five of the conservatives will defer to the White House. Note that Bukele is likely not to want someone to leave CECOT and then be able to talk about CECOT.
I fear that minimal action on the part of the administration will result in Abrego Garcia remaining at CECOT and with the administration still in a position to have complied with SCOTUS.
I hope that I am wrong.
I understand the desire to see this as a positive outcome in a sea of terrible news out of this administration. But I am at the point where betting on the more negative outcomes seems wiser than seeing lights at ends of tunnels that end up being oncoming trains. SCOTUS has done such a poor job of protecting us against an obviously encroaching autocracy that I am having a hard time seeing them not eventually capitulating on some “national security” argument (scare quotes intentional).
Let me add that in the immunity ruling, the Court said the following:
Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.
If the Roberts Court thought this as a general matter, how will they rule if the administration makes an argument that leaving Abrego Garcia is essential to the conduct of US foreign policy, which is clearly within the constitutional authority of the president to conduct?
Again, I hope that I am wrong, but I fear that I am not.
You’re not wrong.
Trump could get the guy back with a single phone call, but I doubt he’ll do that. I wonder if the prison is at least keeping this guy out of gen pop, because if he really isn’t MS13 he’d be very likely to end up dead if placed in with all the other animals.
@Michael Reynolds: Based on what I read about CECOT, I am not sure that they make such distinctions.
I’m confident that if Ivanka were in that prison, her dad would be able to get her out quickly, and any lawyer worth their salt would make that argument.
That said ,the SCOTUS ruling has put this gentleman’s life in grave danger. There’s a lot of incentive for that phone call to result in a “gee, he died, oops”
What I said in the other thread: it’s like claiming you locked an innocent man up, but lost the key. You can order the release of the man, but not the hiring of a locksmith.
That’s their defense.
Regardless of the question of fascism, they are stupid and evil people. America becoming a country which desires stupidity and evil as a comfort blanket against the real world is what we’re looking at it here. The conservative majority on the Supreme Court–which is somewhat indebted to stupid and evil people–has to ask itself how far they’re willing to go, and at what cost, and why.
Might the administration be “negotiating” with Kilmar Abrego Garcia on a NDA in return for, um, return?
They might also be drafting a statement of deep appreciation and admiration that Kilmar Abrego Garcia (and family) has for Trump in working tirelessly to facilitate his return.
John Roberts is the worst Chief Justice since the 19th century, perhaps the worst since Roger Tandy. The legacy of his courts will be villainy.
Not out of incompetency, I would add.
The fact that this was a 9-0 ruling already indicates the worst. 7-2 could be good news in a case like this, 9-0 not so much.
Let’s not forget that according to SCOTUS actual innocence is not a bar to executing someone.
Thomas and Alito would never meaningfully side with the kind of defendant who is persona non grata according to the GOP doctrine du jour.
Ignoring that reality is just naive.
Bukele is acting like the felon’s jailer only because he’s getting paid to do so. To argue, then, that the rapist’s so called administration has no influence on the incarceration of these people is whatever’s worse than ludicrous.
They’re not being held in the gulag because they committed crimes in El Salvador, or are of concern for that country’s security. they’re there only because the felon paid to keep them there.
BTW, that’s a fine look for a country named after Jesus.
This is all theater.
Garcia will die in that jail.
Because that’s what President Doughboy wants.
It’s how he gets his rocks off.
I have zero hope that the administration will get Garcia back to the U.S. out of a sincere desire to comply with the court’s order and the rule of law. I have some small hope that a concerted campaign to point out that Trump must be really weak if he can’t get a Central American dictator that we’re paying to house prisoners to send one of those prisoners back will result in Garcia’s return, but if that happens I expect we’ll see efforts after his return to send him somewhere else with minimal due process.
@Tony W: I’m not sure the SCOTUS ruling increases the danger he’s in given that he was granted asylum because he was threatened with gang violence to begin with. Assuming the correctness of Dr. J’s earlier post and my reading ability.
@Mimai: As repulsive as they may be, I’m amenable to accepting both conditions provided they will secure his release. I already know how bad Trump is and conditions at CECOT are immaterial in the “tough on crime” climate of the US and its affiliated banana republics and extraordinary rendition outposts.
@Mimai: That scenario is so Trumpy. So very Trumpy.
@drj:
And the GOP doctrine du jour is the imperial presidency – authoritarianism for those who want to pretend the US is still a democracy.
A 9-0 vote here must be read as Alito and Thomas not seeing the needle-threading in this specific ruling as a set back for their ultimate goal of an unbound POTUS. The insistence that Judge Xinis clarify the $50 dollar word “effectuate” is the tell.
@Kathy: This!
The US is not sending detainees to CECOT on the basis of some treaty with El Salvador. They are there based on a G-d D–ned contract, a contract to which the US government is the payor. This is no different than any other private prison other than its geography. The idea that the US could take custody of people and then, by agreement, dump them beyond US control is (as everyone is saying) the end of constitutional rights for Americans.
@Scott F.:
Indeed.
But what gets me the most is that there are still people clinging to the notion that some adult (in this case: SCOTUS) will eventually step in.
No, man, this is IT. No daddy is coming to save you. You (and your normie buddies) gotta do it yourselves.
@Daryl:
Just as Cheney/Bush got off on the power to torture people. Also illegally. And unfortunately they set precedent by getting away with it.
@drj:
I’m unable to imagine a credible scenario in which any admin official goes to jail if Abrego Garcia isn’t returned. Which is to say I don’t expect his return.
It appears the DOJ is going to pretextually defy the court. Perhaps it’s just foot-dragging.
https://bsky.app/profile/kyledcheney.bsky.social/post/3lmkggwnsvb2v
@Tony W: And death would presumably prevent a court from awarding any meaningful relief to the complaining party, i.e., rendering the case moot and requiring dismissal on jurisdictional grounds.
The Administration is saying that they can’t do anything because plaintiff is in the hands of a sovereign nation.
Maybe they could use tariffs as a bargaining chip…oh, wait.
What a mess.
They care a lot, and will try very hard to keep him there. They do not want anyone to know what is happening in those prisons, outside of the carefully scripted propaganda videos that appeal to their base’s base desires.
The lawyer that was arguing this case in the lower courts has been put on administrative leave for not making the case strongly enough — i.e., lying.
Do we have any evidence that Garcia is even still alive?
I more than half expect the administration to just lie, and say that he was released to a beautiful farm in upstate Nicaragua, where he has space to run and play. He’s a very private man, though, and they’re going to respect his privacy and not tell anyone where. His family is welcome to join him.
@drj:
We’re at the stage of Deus ex machina solutions. Maybe a patriotic Secret Service agent will turn their weapon where it will do the most good. Maybe the felon will have a fatal stroke or heart attack (he probably takes statins in amounts to sufficient to unclog a whale’s coronaries). Maybe Air Force One will crash*. Maybe Iran, China, and/or North Korea have a foolproof means of removing the rapist with extreme prejudice. Maybe the Ukrainians do.
I’m reduced to this, because all other reasonable avenues are closed or have been blown away. Two impeachments, twin rulings on fraud and sexual assault, one conviction on 34 criminal charges, three pending trials for very high crimes, and the monster is still there.
One very likely explanation is that about half the country wants what he’s peddling, and a sizable portion of the other half doesn’t quite care enough to stop him.
Even if the midterms elections 1) take place, and 2) are fair, I’m sure they won’t result in a massive Blue Wave. That is, assuming things continue as they are or get worse, Democrats should take back the House and Senate, but by small margins. And even if they do, I’m not sure it will matter. Whatever laws Congress manages to pass, even if veto proof, can simply be ignored. That is if the rapist doesn’t begin to round up Democratic Senators and Representatives for complimentary flights to El Salvador.
Not to mention if the felon is still alive and not totally incoherent by 2027 and decides to run for a third term, he will do so.
*Highly unlikely, but a Pakistani and a Polish president have died this way in, relatively, recent times. besides, AF1 is a Boeing product.
@Kathy:
I think the answer is fear.
Officials should have a greater fear of the mob and the guillotines, and for the well-being of their 401(k)s, than of Trump and his cronies.
Which, by the way, is also why I’m not the biggest fan of all those smart-ass signs at the protests that have happened. This isn’t College GameDay, FFS, where the goal is to be funny in order to be noticed.
All these assholes should fear for, at the the very least, their livelihoods (if not their lives), and wonder – really wonder – whether stomping on the social contract is actually worth it.
Once again, Republicans can’t handle the objective reality of the real world and retreat to their safe space where all they do is strawman stupid people into believing Immigrants With No Power And No Money Are The Only Problem.
@drj:
By now the big problem isn’t that there are no adults in the room, but that there are de facto no checks and balances left.
@Kathy:
I’m there too.
… and yet there are still millions on my side of the aisle, epecially in the commentariat, who still normalize him, and imagine that the installation of a few new red lights will be sufficient to cause him to NOT run any more red lights. They’re STILL surprised with each and every new audacious action he takes.
Many years ago I heard a saying, something like: I don’t believe in mracles, I count on them.
Yeah well, right now it kind of feels like I’m waiting for Godot. This is a good time for the Miracle Bus to arrive.
I’d like to see the contract with El Salvador for their housing of the inmates. Surely (I say with some doubt) there would be a provision for returning prisoners. It would be good for the judge to ask to have that submitted so everyone can see what the terms of the agreement are.
I hope that they are slow-walking Garcia’s return in order for whatever brutalization he’s received to be less visible, so they can claim he’s exaggerating when he talks about the conditions. That’s my best-case scenario. Call me over-optimistic.
I still can’t wrap my head around people who support this.