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If American democracy was functioning even marginally well, the Supreme Court’s order requiring the return of Kilmar Abrego Garcia, the Maryland dad mistakenly deported to El Salvador, would be the end of a genuinely repugnant episode.
Instead, we’re living through a surreal time where the executive branch keeps telling the judicial one to pound sand and suffering no consequences.
So even though the Trump administration admitted Abrego Garcia was deported in error and even though the nation’s highest court upheld a lower court’s order requiring his return, the administration is very busy refusing to do so.
On the one hand, the Trump folks are too powerful and cannot be told what to do. On the other hand, they’re just widdle guys and cannot tell El Salvador what to do. On the third hand, sure, they made a mistake in removing Abrego Garcia, but it no longer matters because they changed the rules after deporting him. Oh, and on the fourth hand, they can’t tell you anything about the secret agreement to deport people to El Salvador, because it’s secret, duh. And on the fifth hand, they actually are following the order, so there.
No matter which explanation is trotted out, they’re all equally disingenuous and unconstitutional.
U.S. District Judge Paula Xinis had originally ordered the administration to “facilitate and effectuate the return” of Abrego Garcia by Monday, April 7, at midnight. Rather than do that, the Trump administration raced to the Supreme Court to explain how unseemly, unfair, and unconstitutional it is for a federal court to order the administration to do something it doesn’t want to do.
That approach was ultimately unsuccessful. Last Thursday, the Supreme Court held that Xinis’ order that the administration “facilitate” Abrego Garcia’s return was proper, but her requirement to “effectuate” his return may have exceeded her authority and that she would need to clarify.
Xinis immediately issued an order directing the government to file a status report Friday morning with the location and status of Abrego Garcia, what steps the government has taken to facilitate his return, and what additional steps it will take. She also set a hearing for Friday afternoon.
Rather than obeying the court’s order, the government filed a response whining it wasn’t fair to give so little time to review the Supreme Court’s decision and that the government’s attorneys couldn’t possibly attend a status hearing until April 16.
The Supreme Court’s order is under 500 words long. Nearly all of it is a recap of the status of the case. To the extent there’s anything to review, it’s the whole facilitate versus effectuate thing, and that’s less than a paragraph.
Even if the government felt it needed to review Justice Sonia Sotomayor’s separate statement, everything still clocks in under four pages.
Even after Xinis gave the government additional time to answer, the new response was more of the same, a huffy little declaration it was “unreasonable and impracticable” for the government to reveal any steps they might be considering and that “foreign affairs cannot operate on judicial timelines.”
At the status hearing, the Justice Department attorney insisted he had no information about Abrego Garcia’s status nor any steps the government had taken to facilitate his release. This led to yet another order from Xinis requiring the government to file status updates by 5 PM each day covering the location and custodial status of Abrego Garcia and steps being taken to facilitate his return.
On Saturday, the Trump administration filed only a brief declaration saying Abrego Garcia was “alive and secure” in the Terrorism Confinement Center in El Salvador and that he was “detained pursuant to the sovereign, domestic authority of El Salvador.”
Yeah, about that last bit. Regarding immigration, the administration’s stance is that its power is so great that the courts can’t even ask questions about it. Remember the other lawsuit over deportations to El Salvador? The one where the judge ordered the administration to turn the planes around—and the government just didn’t? When the judge asked for details about the timing of those flights, the administration said that the questions were “grave encroachments on core aspects of an absolute and unreviewable executive branch authority.”
That’s some tough talk! But apparently, it’s reserved only for co-equal branches of the American government. When it comes to the governments of other countries, the administration is simply helpless, in thrall to El Salvador. Even Donald Trump is weak in the presence of sovereign authority, saying that the deportees are “now in the sole custody of El Salvador, a proud and sovereign Nation, and their future is up to President B and his Government.”
Oh wait, sorry. Apologies. That justification is out of date as of 5 PM Sunday, when the administration invented some new, yet equally terrible, theories.
First up: Yes, there was a ruling from an immigration judge that prevented Abrego Garcia from being removed to El Salvador. And sure, that’s exactly what the administration went ahead and did anyway. But it’s all okay now, see, because he’s no longer eligible for that because of his membership in MS-13, which we now say is a terrorist organization.
This is the government pretty much admitting it is changing the rules mid-game to justify its refusal to bring Abrego Garcia home. Yes, it was improper to deport him, the government’s attorneys admit, but if you let us go back in time and magically invent a condition where it was improper, we win!
For a belt-and-suspenders approach, the Trump administration is now inviting us all to join in a shared delusion that El Salvador is one of America’s most valued trading partners and that our arrangements to extreme rendition people into that country’s most notorious prison is a high-wire diplomacy act.
So, ordering the administration to facilitate Abrebgo Garcia’s release and to provide details about the arrangement with El Salvador is unconstitutional because the court cannot compel the executive branch to take a specific diplomatic step. That explanation also allows the government to claim that it can’t share any details about the arrangement with El Salvador because of how secret and important it is.
And if you don’t like that explanation? Oh, how about that the word “facilitate” in this context doesn’t require the government to actually do anything to bring Abrego Garcia home. It just requires the government not to impede Abrego Garcia from doing so. So, you see, the Trump administration is already following the Supreme Court order by doing nothing.
Everyone knows that if Trump wanted to get Abrego Garcia home, he could. Everyone knows that Trump does not believe that the president of El Salvador has the final say on literally anything. Everyone knows Trump could simply ask El Salvador President Nayib Bukele to return the wrongfully deported man when the two leaders meet at the White House on Monday.
These are obvious fictions, ways for the administration to show off that it can’t even be bothered to invent a passable explanation. It’s a profound disdain for the American people, a profound disdain for democracy, and, most of all, a profound disdain for the lives of the deportees.
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