SCOTUS is Missing the Forest for the Trees AND Missing the Trees for the Forest

On Thursday night last week, after the Supreme Court issued its order in Noem v. Abrego Garcia but before Judge Xinis responded by clarifying what exactly she expected of the Trump administration, I published a thread on BlueSky that, in retrospect, may have been too optimistic. Unrolled (that is to say, as a single text rather than multiple entries), here's what I wrote:

I'm seeing a lot of criticism of the SCOTUS order in the Abrego Garcia case. Why, people ask, does the Court suggest that the district court may have exceeded its authority? I don't like the prospect of further delay, but I think the Court's order gets it about right. Let me explain.

First, there doesn't need to be further delay. Judge Xinis could clarify her order in hours or even minutes. Second, SCOTUS is correct to suggest that a federal judge cannot order the executive to "effectuate" the return of a US citizen from a foreign sovereign if "effectuate" means "guarantee."

Various Trump administration officials have said, correctly, that the writ of habeas corpus does not run to El Salvador. But they have then said, incorrectly, that a federal district judge therefore can't do anything. That's not right.

The unavailability of habeas doesn't mean there's no remedy. SCOTUS implicitly but unmistakably (and correctly) approved of the exercise of equitable jurisdiction here. Thus, Judge Xinis has the traditional powers of equity. These include ordering parties to make good faith efforts towards an end.

Courts routinely order good faith efforts in other contexts. In this context, Judge Xinis can--and in my view should--order the government to make good faith efforts to obtain Abrego Garcia's return, backed by a requirement that if Abrego Garcia is not swiftly returned, the admin detail why.

Although the SCOTUS order says Judge Xinis should give "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs," it necessarily (and unanimously) rejects the admin's argument that such deference precludes ANY form of judicial equitable relief. That's important.

Further, the order states that "the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps." The "what it can" is weaker than I would have liked, but it at least implies the admin can't simply invoke national security as a talisman.

The key now, in my view, is to leverage Pres. Trump's claims that he follows court orders--dubious in some of the funding cases but heretofore true in SCOTUS cases--along with another factor: Trump hates to look weak. If DOJ lawyers come back to court and say "we asked but Bukele said no," the Trump admin will look weak. "A foreign leader whom the US is paying millions of dollars to detain migrants for the US told us to bugger off" is not credible and is a sign of weakness.

Given the near-certainty that Bukele would return Abrego Garcia to the U.S. if the Trump administration asked in good faith, the administration's desire to look strong could thus be leveraged here. The public campaign equating a failure to secure the return as weakness should start now.

I continue to think that if the administration says to Judge Xinis (and/or to the Fourth Circuit and/or SCOTUS in further appeals) that it can't persuade Bukele to send Abrego Garcia back, public criticism should target Trump for weakness. However, based on the representations DOJ lawyers made to Judge Xinis on Friday and a brief it filed in the district court last night, it appears that the administration is simply refusing to comply with the district court orders to do just about anything. On Saturday, the government told Judge Xinis that Abrego Garcia was still alive, but it has otherwise stonewalled. Meanwhile, the DOJ is mischaracterizing the Supreme Court's action. The DOJ brief filed last night says that "facilitate" means

what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking “all available steps to facilitate” the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of “facilitate” is tenable—or constitutional—here.

That argument does not pass the laugh test. The entire dispute at this point is about getting Abrego Garcia back, so whatever distance there may be between what Judge Xinis and the Supreme Court understand "facilitate" to mean, it has to mean more than removing domestic obstacles. If the administration adheres to its position, therefore, it will likely seek a stay of whatever district court order comes next, and the case will be back in the Supreme Court in the days ahead. What will happen then? 

I'd like to see at least two of the conservative Justices lose patience but I'm not confident that will happen because, as we have seen in the handful of other cases on the SCOTUS shadow docket over the last few weeks, the Court is treating Trump like a normal president and thus disregarding the authoritarian and lawless character of what we should start calling the Trump regime rather than the Trump administration.

A prime example is the per curiam order last week in the case involving the Venezuelans who are currently being detained in Texas before potentially being shipped off to El Salvador. The good news is that the Court held that they are entitled to notice of their potential removal in a time and manner that gives them an opportunity to contest the removal's legality via habeas corpus before removal occurs. The bad news is that the per curiam said nothing about the fact that the Trump regime had already removed numerous Venezuelans without any judicial review and was, as Justice Sotomayor pointedly noted in a separate statement, taking the position in Abrego Garcia's case that once removed to another country, detainees are beyond the reach of U.S. courts. As Justice Sotomayor pointed out there, the rationale on which the regime has been relying--essentially, it's out of our hands--would apply equally if the regime erroneously (or maliciously) sent a U.S. citizen to a prison in El Salvador. 

Last week's per curiam in the Venezuelans' case also invoked a longstanding doctrine according to which certain kinds of relief can be obtained only through habeas corpus and then only in the district in which a detainee is being held. Meanwhile, and also last week, the Court stayed a district court order in a case challenging the dismissal of thousands of federal probationary employees on the ground that the non-profit organization plaintiffs lacked standing.

The Court was not obviously wrong in its application of various procedural doctrines in those cases. But, as I told Adam Liptak for the New York Times, ruling for the Trump regime on such grounds "invites further chicanery from an administration that is acting in bad faith." Further evidence of such bad faith came yesterday, when the regime sent more alleged gang members to El Salvador, this time from Guantanamo Bay. It does not appear that any of them were given notice or an opportunity to contest their removal via habeas (as SCOTUS said just recently is essential), even though the Supreme Court held in 2008 that non-citizens detained at Gitmo have a constitutional right to file habeas corpus petitions.

To be clear, I'm not saying that the Court should ignore procedural or jurisdictional limits simply because the regime is acting lawlessly. I am saying that in exercising its equitable discretion to grant or deny emergency stay applications, the Court ought to give greater--or at least some!--weight to the fact that the regime is not simply advancing a controversial ideological agenda but is busily destroying American constitutional democracy.

The Supreme Court's treatment of the Trump regime thus far under a business-as-usual approach thus misses the forest for the trees. But it also misses the trees for the forest. One can argue--and in general I would agree--that it is important for courts to adhere to procedural, jurisdictional, and other rules even when doing so leads to outcomes one disfavors in particular cases--because over the long run that is the best way to promote the rule of law. However, in a sufficiently dangerous crisis, one must confront the immediate danger, lest there be no long term. The Roberts Court does not appear to understand that--or, perhaps worse, does not realize just what a threat Trump is.

Here's how I put the point in response to the Supreme Court's dreadful immunity ruling last summer:

[E]choing a grandiose statement during the oral argument by Justice Gorsuch that the Court must write "a rule for the ages," the majority in Trump [v. United States] sees its role primarily as one of setting a precedent for all potential future Presidents. The Court worries that if it provides Trump with insufficient immunity it will give rise to "an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors . . . ."

Never mind that that is not what's happening here, given that [Biden's] appointed Attorney General was highly reluctant to proceed with the prosecution and then assigned the task to a special counsel. What's most galling about that statement and the entire opinion is the not-at-all-tacit assumption that Trump was a normal President. Yes, of course the Court needs to announce rules that apply to future Presidents as well, but the failure to recognize that the conduct alleged in the indictment poses an existential threat to the continuation of the Republic as a constitutional democracy ought to have led the Court to formulate a rule that matches the moment.

Since Trump began his second term, the threat has only grown. Unfortunately, there is scant evidence thus far that a majority of the Supreme Court recognize as much.