The Volokh Conspiracy
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Trump Takes Dangerous Steps Towards Defying Court Orders in Garcia Abrego Case
The Supreme Court ruled they administration must "facilitate" the return of an illegally deported migrant imprisoned in El Salvador at its behest. They have responded by doing virtually nothing to comply.
When the Supreme Court ruled that the Trump Administration must "facilitate" the return of Kilmar Abrego Garcia, a Salvadoran migrant illegally deported to imprisonment in El Salvador, I noted it was an important victory for immigrant rights, but also warned the administration might try to weasel its way out of compliance by applying a very narrow definition of "facilitate" that licenses near-total inaction. Sadly, this is exactly what happened.
When the case was remanded back to the district court, Judge Paula Xinis issued an order instructing the defendants to "take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible." The government indefensibly interpreted this as merely requiring it to remove "domestic" obstacles to his return, making no effort to get the Salvadoran government to release him from prison. That makes no sense in a context where the Salvadorans had imprisoned Abrego Garcia at the behest of the US, and the Trump Administration could easily secure his release simply by demanding it. As conservative legal commentator Ed Whelan puts it: "The administration is clearly acting in bad faith… The Supreme Court and the district court have properly given it the freedom to select the means by which it will undertake to ensure Abrego Garcia's return. The administration is abusing that freedom by doing basically nothing."
The Administration coupled this bad-faith failure to follow the Supreme Court's and district court's orders with unsubstantiated claims that Abrego Garcia was a member of the MS 13 drug gang. They have no evidence for that. And if they did, the proper course of action is to charge him with it in court, rather than deportation and imprisonment without due process.
Judge Xinis appears to agree with Whelan's assessment. In an order issued today, she chastizes the the Administration for doing "nothing" to bring Abrego Garcia back to the US and rejects the assumption they need only remove "domestic" impediments:
Defendants… remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia's release from custody in El Salvador and resuming his status quo ante. But the record reflects that Defendants have done nothing at all. Instead, the Defendants obliquely suggest that "facilitate" is limited to "taking all available steps to remove any domestic obstacles that would otherwise impede the alien's ability to return here…." The fallacy in the Defendants' argument is twofold. First, in the "immigration context,….." facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications. Thus, the Court cannot credit that "facilitating" the ordered relief is as limited as Defendants suggest.
Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia's release from custody and return to the United States to "ensure that his case is handled as it would have been" but for Defendants' wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2 [citing Supr. Thus, Defendants' attempt to skirt this issue by redefining "facilitate" runs contrary to law and logic.
Judge Xinis goes on to order extensive expedited discovery regarding the defendants' conduct, to determine more fully what the the government has done and could do to facilitate Abrego Garcia's release. We shall see whether the defendants' compliance is as flawed as it has been with previous judicial orders. If they have not yet quite openly refused to follow judicial orders, they certainly have been trying to circumvent them in bad faith.
I think Judge Xinis should have ordered still stronger measures against the defendants, such as requiring them to formally demand Abrego Garcia's release from Salvadoran custody under threat of termination of the agreement under which the Salvadoran regime imprisons US deportees for money. The entire arrangement is an unconstitutional violation of the Due Process Clause of the Fifth Amendment (the deportees are imprisoned without ever having any opportunity to defend themselves in court). Maintaining it is therefore not a legitimate foreign policy interest within the prerogrative of the executive branch.
Much is at stake in this case. If the Administration is able to get away with circumventing or defying court orders, it would severely undermine all constitutional constraints on government power, including those that protect US citizens. And as prominent conservative Judge Harvie Wilkinson noted in his opinion in the Fourth Circuit ruling in this case, it is extremely dangerous if the government can deport people to imprisonment in a foreign state without any due process or any meaningful obligation to return them:
The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.
I would add that this danger isn't limited to recent immigrants. It applies to US citizens, as well. The threat to US citizens' rights is no longer just theoretical, since the president is openly considering the possibility of deporting and imprisoning US citizens in El Salvador.
This slippery slope must be stopped before we go any further down it. Courts must do their part. And the rest of us must give them strong political support in doing so. That can help deter the administration from further rampant illegality.
