The Volokh Conspiracy
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Can A Federal Court Force The President To Negotiate With A Foreign Leader To Obtain Return of Alien?
Noem v. Garcia comes to the Supreme Court.
Earlier today, Solicitor General Sauer filed his first emergency application with the Supreme Court. This case concerns the District Court's order to return an alien who was deported to a prison in El Salvador. The statement lays out the stakes:
On Friday afternoon, a federal district judge in Maryland ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight. Complicating the negotiations further, the alien is no ordinary individual, but rather a member of a designated foreign terrorist organization, MS-13, that the government has determined engages in "terrorist activity" or "terrorism"—or "retains the capability and intent to engage in terrorist activity or terrorism"—that "threatens the security of United States nationals or the national security of the United States." The order compels the government to allow Kilmar Armando Abrego Garcia to enter the United States on demand, or suffer the judicial consequences.
At a superficial level, I understand the district court's order. The judge found that Garcia was unlawfully deported, and therefore sought the return of the alien. Isn't this simply the sort of injunction that courts issue to the executive branch all the time? Not quite. Here, obtaining the return of the alien would require the President to successfully negotiate the release of the alien from a foreign leader. Even if the President makes this request, the foreign leader is under no obligation to comply. I am seriously doubtful this is the sort of power that the judiciary has.
The SG makes this argument quite forcefully:
Even amidst a deluge of unlawful injunctions, this order is remarkable. Even respondents did not ask the district court to force the United States to persuade El Salvador to release Abrego Garcia—a native of El Salvador detained in El Salvador— on a judicially mandated clock. For good reason: the Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists, including by effectuating their removal. And this order sets the United States up for failure. The United States cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations. The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge's bidding. The Constitution vests the President with control over foreign negotiations so that the United States speaks with one voice, not so that the President's central Article II prerogatives can give way to district-court diplomacy. If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business. Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States' diplomatic relations with the whole world.
The government concedes that Gacia's removal was in error, but maintains that the Supreme Court should recognize the sovereignty of a co-equal branch of government.
But, while the United States concedes that removal to El Salvador was an administrative error, see App., infra, 60a, that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight.
Judges have ordered planes to be turned around and negotiations to be had with foreign leaders. I realize that Trump is breaking many norms, but judges are streamrolling through norms as well.
What does Chief Justice Roberts do here? The John Roberts of 2005, who vigorously ruled in favor of the Bush Administration with regard to Guantanamo Bay, would grant this application in a heartbeat. But the John Roberts of 2025 has been changed by decades of compromise.
I think the most likely outcome is that Roberts follows the lead of Judge J. Harvie Wilkinson on the Fourth Circuit: deny the application, but "clarify" that the District Court can only require the President to "facilitate" the return of the alien. Here is what Wilkinson wrote:
I would deny the request for a stay of the district court's order pending appeal. We deal here with what I hope is the extraordinary circumstance of the government conceding that it made an error in deporting the plaintiff to a foreign country for which he was not eligible for removal. In this situation, I think it legitimate for the district court to require that the government "facilitate" the plaintiff's return to the United States so that he may assert the rights that all apparently agree are due him under law. It is fair to read the district court's order as one requiring that the government facilitate Abrego Garcia's release, rather than demand it. The former seems within the trial court's lawful powers in this circumstance; the latter would be an intrusion on core executive powers that goes too far.
Like in the USAID case, the Court would ostensibly deny relief, but still offer instructions to the lower court--yet another advisory opinion.
I still remain confounded that the best the Bush Administration had to replace Rehnquist was Roberts, Wilkinson, or Luttig. Our bench is so much deeper today.
Update: Chief Justice Roberts granted a temporary administrative stay, and called on the Respondent to file a brief tomorrow (Tuesday):
Order entered by The Chief Justice: Upon consideration of the application of counsel for the applicants, it is ordered that the April 4, 2025 order of the United States District Court for the District of Maryland, case No. 8:25-cv-951, is hereby stayed pending further order of The Chief Justice or of the Court. It is further ordered that a response to the application be filed on or before Tuesday, April 8th, 2025, by 5 p.m. (EDT).
Almost immediately, Respondents filed their response. They were ready to go.
