What the Courts Can Still Do to Constrain Trump
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In an Oval Office meeting yesterday, President Donald Trump and Salvadoran President Nayib Bukele both indicated that they would not, and were perhaps even powerless to, help Kilmar Abrego Garcia—the Salvadoran national whom the Trump administration wrongfully removed from the United States last month and who remains imprisoned in El Salvador’s Centro de Confinamiento del Terrorismo mega-jail. Many headlines have suggested that Trump is therefore openly, if not gleefully, defying Thursday’s Supreme Court ruling that the administration “facilitate” Abrego Garcia’s return.
More accurately, the administration is defying the spirit, rather than the letter, of the Supreme Court ruling. What’s indisputable, though, is that it's daring the federal courts to take much more aggressive steps to block its immigration policies.
The central problem with the Supreme Court’s ruling on Thursday night, in which the justices unanimously affirmed the power of federal courts to review Abrego Garcia’s detention and to order the government to at least attempt to return him to the United States, is that it left a little bit of wiggle room. It did not actually mandate Abrego Garcia’s return, it did not set a deadline for any next steps, and it used malleable language (“facilitate”) to describe the government’s underlying obligation. Crucially, the Court “affirmed” the core of a lower-court judge’s order that the government has such an obligation. But it was also deliberately vague about the scope of that obligation—especially as balanced against “the deference owed to the Executive Branch in the conduct of foreign affairs.”
To be clear, the Trump administration, and especially the Trump adviser Stephen Miller, keeps misdescribing what the Supreme Court actually ruled last Thursday. Miller, for instance, has publicly claimed that the Court unanimously rejected the power of federal courts to intervene in this case—which is laughably and demonstrably false. From the Court’s opinion: “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.”
And the Justice Department’s foot-dragging before Judge Paula Xinis (the Maryland district judge presiding over the case on remand) has been unquestionably inconsistent with the spirit of the Court’s ruling. But at least some of this mess is the Supreme Court’s fault. If the government had actually attempted to do everything within its power to “facilitate” Abrego Garcia’s return, and it simply was unable to do so, then that would be entirely consistent with the Supreme Court’s mandate. The problem is that, thanks at least in part to the government’s own public behavior both before Thursday’s ruling and since, no one actually believes that the government is making even modest efforts—let alone exhaustive ones—to comply.
[Gisela Salim-Peyer: El Salvador’s exceptional prison state]
Indeed, the administration’s public posture in this case is insulting to the American people’s intelligence. In a social-media post this morning, Vice President J. D. Vance rhetorically asked a critic whether they were “proposing that we invade El Salvador to retrieve a gang member with no legal right to be in our country.” Leaving aside that there actually is a statute on the books that requires the use of military force against a foreign government in an analogous circumstance, this is a ridiculous straw man. If a federal court orders a defendant to take all lawfully available steps to remedy an ongoing legal violation, the defendant has an obligation to do so—even if those lawful steps turn out to be insufficient.
What’s important to recognize is that federal courts have not reached the end of the road in this case. For instance, a federal court could order the government to request Abrego Garcia’s return. A federal court could order the government to stop paying El Salvador to detain Abrego Garcia. A federal court could order the government to pursue any and all diplomatic means to “effectuate” Abrego Garcia’s return. And it could require a senior government official with direct knowledge of the facts to testify as to what efforts the government has (and has not) made in this case—and, to illustrate the distinction, what efforts the government has made in other, prior cases where it has been able to get folks back who were wrongfully removed, extradited, or otherwise transferred.
Finally, even if a federal court can’t order the government to invade El Salvador, it can at least attempt to impose consequences on the government for failing to take all possible steps to procure Abrego Garcia’s release. A court could consider monetary sanctions (against Homeland Security Secretary Kristi Noem, for example) if, by a specific date, the United States hasn’t, in the judge’s view, done everything lawfully possible in this case. The sanctions thus become the incentive for more aggressive efforts at “facilitating” Abrego Garcia’s return. A court could refer lawyers who refuse to follow its instructions, or otherwise fail to live up to their obligations of candor to the tribunal, to their state bar. And so on. In other words, there’s a wide swath of daylight—and of judicially available relief—between invading El Salvador and just taking the government at its (facially preposterous) claim that it’s totally powerless. (Indeed, if the United States really is totally powerless in this case, what does that say about the Trump administration?)
It wouldn’t surprise me if this is where things go in court—with Judge Xinis ratcheting up the pressure on the government, and contemplating, if not imposing, escalating sanctions for every day in which it does nothing to even try to facilitate Abrego Garcia’s return, at least to her satisfaction. That might get this case back to the Supreme Court quickly—where the justices will have to decide what to do now that Trump has so publicly called their bluff. My suspicion is that even justices who are more sympathetic to the need for deference to the president when it comes to foreign affairs will not take kindly to the conduct we’ve seen since Thursday.
Again, federal courts have not reached the end of the road and could still try to prevent cases like this one by imposing consequences for the Trump administration’s openly (indeed, mockingly) lawless behavior. After all, if the Trump administration is going to so publicly take the position that anyone removed from the United States is no longer its responsibility, and that courts cannot compel it to take any steps to bring back even those who were removed in error, then there’s an obvious response from the federal courts: No more removals of anyone until and unless the entire judicial process has run its full course.
[Adam Serwer: The constitutional crisis is here]
That means no more use of the Alien Enemies Act until the Supreme Court (and not just a district court) has specifically ruled on both whether it applies to the Tren de Aragua gang in the first place and, if it does, how much evidence the government must provide to prove that specific individuals are members of TdA (and thus removable under the act). That means no more removals under the Immigration and Nationality Act (the normal process) until and unless individuals the government claims are subject to removal (such as Mahmoud Kahlil) have had a full opportunity to challenge the factual and legal basis for their removal—not just before an executive-branch immigration judge, but in an independent federal court. The obvious antidote to post-removal lawlessness and noncompliance is to ramp up pre-removal judicial review. That ought to ensure that there won’t be future cases like Abrego Garcia’s—and it might even provide incentives for the government to behave in his case too.
I’ve thought, from its inception, that Abrego Garcia’s case is as big a test for the rule of law during the Trump administration as anything else we’ve seen. Part of that is because, if the government can wrongfully remove someone like Abrego Garcia to a Salvadoran prison without any consequence, it can do that to any of us—alleged gang member or not, Salvadoran or not, citizen or not.
But part of it is because Abrego Garcia is also a case about what, historically, has been a gray area in the relationship between the federal courts and the executive branch. Federal courts can’t tell the executive branch what to do, but they can tell it what it can’t do, and they can provide powerful incentives for the executive branch to choose to take specific steps on its own. Maybe those incentives can’t work in Abrego Garcia’s case, specifically. But the government simply can’t afford to alienate the entire federal judiciary. And a world in which the federal courts become reflexively skeptical of any effort to remove anyone from the United States is one in which the Trump administration’s conduct in this one case will prevent it from accomplishing many of its broader immigration-policy goals. Of course, Trump and his advisers might think that’s a price worth paying. But like so much of their behavior in this case, that, too, would be revealing.
This article was adapted from a post on Steve Vladeck’s Substack, One First.