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“The Supreme Court [last] Thursday evening largely left in place an order by a federal judge in Maryland directing the government to return to the United States a Maryland man who is currently being held in a maximum-security prison in El Salvador as a result of what the Trump administration concedes was an ‘administrative error.’…
“The [Supreme Court] justices agreed that [federal Judge Paula] Xinis could require the Trump administration 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’ that country. But the justices sent the case back to the lower court for Xinis to ‘clarify’ her additional instruction that the Trump administration ‘effectuate’ his return…
“In making that clarification, the justices wrote, Xinis should take note of the ‘deference owed to the Executive Branch in the conduct of foreign affairs.’ On the other hand, they added, the Trump administration ‘should be prepared to share what it can concerning the steps it has taken’ to secure Abrego Garcia’s return ‘and the prospect of further steps.’” SCOTUSblog
“The Trump administration confirmed to [the] federal judge Saturday that [Abrego Garcia] remains confined in a notorious prison in El Salvador. But the government’s filing did not address the judge’s demands that the administration detail what steps it was taking to return Kilmar Abrego Garcia to the United States. The government said only that Abrego Garcia, 29, is under the authority of the El Salvador government… The filing comes one day after a U.S. government attorney struggled in a hearing to provide U.S. District Judge Paula Xinis with any information about Abrego Garcia’s whereabouts.” AP News
The left is critical of the administration’s treatment of Abrego Garcia.
“To justify leaving Abrego Garcia in a foreign gulag, the Trump administration claims he is a member of the MS-13 gang. But the evidence for this is exceptionally thin. As the lower court has noted, it rests on the claim that a ‘confidential informant’ told police in Maryland (where he was detained in 2019) that he was in the gang, and on his… Chicago Bulls hat and hoodie. That’s absurd…
“But here’s the thing: Even if you allow that Abrego Garcia might have been in MS-13, the government still can simply return him, go into an immigration court, and relitigate his initial ‘withholding of removal’ status. Or, alternatively, the government can seek to deport him to a third country, which isn’t precluded by that status…
“In short, the choice is not necessarily between (1) leaving him to rot in a foreign prison after sending him there illegally and (2) bringing him back to roam free inside the United States for the rest of his life… [There’s also] retrying him in the United States and seeking his deportation that way, if the government so chooses… When the choice is understood this way, the whole story looks even uglier.”
Greg Sargent, New Republic
“[The government] claimed the judge no longer had jurisdiction because Abrego García wasn’t physically in the U.S. any more. It further argued that the U.S. couldn’t tell a foreign country what to do with a prisoner—not even one held at the request of, and using money under contract from, the U.S…
“If this practice of rendition by the government were allowed to stand… Simply and rather frighteningly put, the government could whisk migrants, or even U.S. citizens, away to foreign prisons, then claim that their hands were tied because… they were in foreign prisons. This would open a huge loophole to due process big enough for Trump to drive a garbage truck through…
“The government of El Salvador is acting as the agent of the U.S., getting paid millions to hold migrants on behalf of the U.S. The head of Homeland Security, Kristi Noem, has boasted publicly that the Salvadoran megaprison is ‘one of the tools in our tool kit that we will use.’ We need to underscore that point.”
Jay Kuo, Status Kuo
“[The government is saying] that facilitating his return may require sensitive foreign policy considerations… But immigration law experts said that foreign policy cannot justify the Trump administration’s failure to return Abrego Garcia. ‘The idea that somehow this is something other than just picking up the phone and saying, ‘Get this guy back here,’ is absolute poppycock,’ said Paul Wickham Schmidt, a retired immigration judge.”
Nicole Narea, Vox
The right is pleased that the Supreme Court clarified the federal judge’s order.
The right is pleased that the Supreme Court clarified the federal judge’s order.
“Now that Mr. Abrego Garcia is in El Salvador, the U.S. can’t simply order that foreign government to send him back. This requires diplomacy, which is a foreign-policy function reserved for the executive. Getting those wheels in motion can’t happen literally overnight as Judge Xinis commanded…
“The Supreme Court tried to balance the due process and executive power interests in the case, and Judge Xinis acted as if the Supreme Court had merely offered her counsel she didn’t need to take…
“She is needlessly courting a clash with the executive branch, when Chief Justice Roberts and the Court are trying to steer her and the Administration away from one. The Supreme Court often issues deferential guidance to lower courts on remand, hoping to give judges closest to the facts in a case some leeway. But if willful judges don’t listen when the High Court includes guidelines, then the Justices may have to take firmer steps to keep lower courts in line.”
Editorial Board, Wall Street Journal
“Now it’s true that the lower courts erred in directing the executive branch point-blank to ‘effectuate’ Garcia’s return. The Supreme Court correctly smoothed that over, ruling that ‘the intended scope of the word ‘effectuate’ in the District Court’s order was unclear,’ and should be construed to mean ‘facilitate.’ That much seems obvious…
“It goes without saying to anyone with his head screwed on, liberal or conservative, that no court could order the President to, say, go to war if the receiving country balked at handing over the detainee it had in its jurisdiction simply as a result of the American government’s administrative error. But the basic point remains. What on earth was the administration thinking when it argued that it had no obligation to make at least some sort of serious attempt to correct its own mistake?”
William Otis, Substack
Some argue, “The Trump administration completely deserves this loss. As Justice Sotomayor points out in her separate opinion, the Trump administration’s position ‘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.’ (The fact that I am agreeing with Sotomayor signals how ludicrous DOJ’s position is.)…
“The notion that the Trump administration could not readily secure Abrego Garcia’s return is difficult to take seriously. Are we really to believe that the ‘Art of the Deal’ president has struck a deal with El Salvador that prevents him from obtaining the return of individuals that have been wrongly deported?”
Ed Whelan, National Review
