The Volokh Conspiracy
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The Chief Justice "Facilitates" Another Shadow Docket Compromise In Noem v. Garcia
The Trump Administration didn't lose but it didn't quite win either.
Another day, another shadow docket compromise. This evening, the Court issued a short three paragraph per curiam opinion in Noem v. Garcia. In short, the Court found that that the District Court could not order the Executive Branch to negotiate the return of Garcia, but instead could only require the government "facilitate" Garcia's return. This outcome was entirely predictable. On Monday, I wrote:
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.
The Chief Justice (almost certainly) wrote the per curiam order, which states:
The rest of the District Court's order remains in effect but requires clarification on remand. 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.
I nailed this one 100%. "Clarify" and "facilitate" is all that was needed.
Now, let's get into the nitty gritty.
First, the Court repeats this strange argument that an order with a deadline in the past is no longer in effect:
Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government's emergency application is effectively granted in part and the deadline in the challenged order is no longer effective.
The Court employed this reasoning in the USAID case:
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
This argument makes no sense. When a court's deadline has passed, that means the government has failed to comply with the order. It doesn't meant he deadline is "no longer effective." This argument even makes less sense when the reason why the deadline lapsed is that a Justice granted an emergency stay. How can it be that a single Justice's administrative stay can vacate a lower court injunction? A stay only puts a ruling on hold. I would like someone with more knowledge of appellate procedure to explain how this works. But the Chief found some new game to avoid the usual rules of procedure, and he will keep playing it.
Second, the Court provides this order:
The application is granted in part and denied in part, subject to the direction of this order.
I searched the Supreme Court database on Westlaw for the phrase "The application is granted in part and denied in part." There were zero hits. I also searched for "subject to the direction of this order." There were zero hits. There are some serious John Roberts machinations going on here.
The government's application asked the Court to vacate the district court's injunction. Did the Court actually vacate the district court's injunction? Well, it didn't say it was doing so. Rather, it relied on the locution of "clarification." But in every sense, the Court vacated the District Court's injunction. The injunction said the alien had to be returned by a certain date, and the government does not have to return the alien by that date. The injunction was vacated. This is similar to what happened in the USAID case, where it denied the government's request to block the funding injunction, but the Court still asked the District Court to clarify the scope of the order to spend $2 billion.
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
If in fact the Court vacated the District Court's injunction, in what regard was the government's application denied? It wasn't. The application was granted in full. The government didn't get all the relief they wanted, but that isn't what "denied in part" means. This is sort of the inverse of San Francisco v. EPA where Justice Barrett purported to "dissent in part" where she in fact dissented in whole. Once again, the Court is playing fast and loose with terminology to obscure what it is actually doing. It seems good for the press to report something is "denied in part," as it seems that the Court ruled against Trump. But it didn't.
At least this order is not an advisory opinion, like the USAID case. The Court clearly grants the application, at least in part, which gives it the power to issue an order to the lower court. No, jurisdiction is not some kind of "shiny" bobble.
Third, there is a minimal statement about the separation of powers:
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.
This is a clear reversal of Judge Thacker's opinion for the Fourth Circuit, which found the executive branch had no countervailing interest in this case. Judge Thacker would have ordered the return of Garcia, post haste. What does the Chief Justice require: be prepared to share information. That is not much. All the government needs to say is "we think the prospects of Garcia's return are bleak" and they will have complied with this order.
Here, the Trump Administration did not lose, but it didn't quite win either. This is similar to the JGG case where the administration won on the venue question, but lost on the ability to summarily remove alleged alien enemies.
Fourth, Justice Sotomayor's statement provides a gloss of the majority's opinion:
Nevertheless, I agree with the Court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with "due process of law," including notice and an opportunity to be heard, in any future proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). It must also comply with its obligations under the Convention Against Torture. Federal law governing detention and removal of immigrants continues, of course, to be binding as well.
I am fairly confident Justice Sotomayor overreads the majority. The majority said none of these things. I am also fairly confident the judges of the Fourth Circuit will dutifully cite Justice Sotomayor. That may be why she wrote a "statement" rather than a dissent.
The Court is moving more expeditously through the emergency docket then I expected. And in case you missed it, today Circuit Justice Kavanaugh granted an administrative stay in an Ohio election case.
