Wait, Can He Actually Do That? Part 13: Trump's DOJ Tells SCOTUS It Can't Return Man It Unlawfully Rendered to El Salvador Because Trump is a Lousy Negotiator
Most readers are likely aware of the basic facts of the case of Kilmar Armando Abrego Garcia, the El Salvadoran man who was legally living in Maryland pursuant to a 2019 court order forbidding the government from deporting him to his home country, where, the court found, he would face persecution. The Trump administration has admitted that sending Abrego Garcia to a supermax prison in El Salvador known for human rights abuses was an "administrative error" but contends before the U.S. Supreme Court that there is nothing a federal court can do about that. As I shall explain, the Solicitor General's argument ultimately rests on the claim that the president who frequently boasts about his abilities as a deal maker is a lousy negotiator.
Abrego Garcia has been wrongly imprisoned in El Salvador since March 15, when he was flown there by the United States. After a hearing on Friday of last week, Federal District Judge Paula Xinis ordered the government to effectuate Abrego Garcia's return to the United States. She explained her reasoning in an opinion she handed down yesterday, maintaining the deadline she gave to the Trump administration for compliance of midnight tonight. As I write, that deadline is less than three hours away; yet Abrego Garcia remains imprisoned in El Salvador. Why?
The short answer is that earlier today Chief Justice John Roberts granted an administrative stay of Judge Xinis's order so that the full Supreme Court could consider the government's application, setting a short deadline--one that expires at 5 pm tomorrow--for Abrego Garcia's lawyers to file a response to the government's application. The lawyers have already obliged. In the meantime, and also earlier today, the U.S. Court of Appeals for the Fourth Circuit denied the government's motion to stay Judge Xinis's order. The panel decision was unanimous but did not include an opinion for a majority. It was explained in two concurrences.
One concurrence, by Judge Stephanie Thacker, joined by Judge Robert Bruce King, carefully runs through the government's procedural objections and explains why they're wrong, in some instances egregiously so. The heart of the Thacker concurrence comes early on, when she describes the government's position that it has the "legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process" and its further contention "that the federal courts are powerless to intervene" as "unconscionable."
The other concurrence, by Judge J. Harvie Wilkinson III, was practically a dissent. Judge Wilkinson concurred because he read Judge Xinis's order as telling the government to "facilitate" the return of Abrego Garcia, not as ordering the government to return him, which, in Judge Wilkinson's view, would raise serious separation of powers concerns.
The Justice Department's application in the Supreme Court places those separation of powers concerns front and center. Abrego Garcia, it says, is in the custody of a foreign sovereign; the Constitution assigns to the president, not the courts, the power to conduct foreign policy, including entreaties to foreign sovereigns; and therefore Judge Xinis cannot demand that the U.S. government retrieve Abrego Garcia without overstepping the judiciary’s bounds.
Yet while it's true that a federal district court cannot issue orders to a foreign sovereign regarding the foreign sovereign's conduct in its own territory, there is no reason why it cannot order the executive branch of the U.S. government to make good-faith efforts to persuade the government of El Salvador to return Abrego Garcia. Judges Xinis, Thacker, and King went further. They noted--correctly--that El Salvador is jailing the people the U.S. sent there pursuant to what is essentially a contract. The U.S. is paying millions of dollars to El Salvador to jail them, pending U.S. determination of where to send them at the end of a year. That, in these judges' view, makes El Salvador a de facto agent of the U.S.
But even if that's not true, even if one accepts Judge Wilkinson's view of the delicacy of the separation of powers concerns, surely it should be permissible for the court to order good faith efforts to obtain Abrego Garcia's return to the U.S. That is something courts routinely do with respect to contracts--with respect to which there is an implicit covenant of good faith and fair dealing. Indeed, one would think that, in light of the government's recognition of its own mistake in rendering Abrego Garcia to El Salvador, it would be eager to tell the court that it is in fact making just such good faith efforts. And yet when Judge Xinis asked a DOJ lawyer why the government couldn't do that, he said he had asked the same question of others in the government and not been given an answer. For his honesty, AG Pam Bondi suspended him.
Notably, neither Bondi nor anyone else in the Trump administration has said that it is attempting in good faith to rectify its mistake. It's one thing to claim, as the administration does, that a court can't order it to correct its error. It's another for the administration to make no such effort on its own.
Indeed, the DOJ's application in the Supreme Court comes close to walking back the admission of error. It repeatedly refers to Abrego Garcia as "a member of MS-13," despite the fact that there has never been such a finding. The government's evidence of such supposed gang membership consists of this: in 2019 he wore a Chicago Bulls hat and a hoodie; and a confidential informant at that time claimed Abrego Garcia was a member of MS-13 in New York, a place Abrego Garcia has never been. No court has ever found that Abrego Garcia has ever had any affiliation with MS-13.
To be clear, the government's application does not formally deny that it made an error in sending Abrego Garcia to El Salvador. In light of that fact, there is no good reason why the government can't assure the Court that it is in fact trying to rectify its error. There are only two possible reasons it has not done so: (1) The government is trying to get Abrego Garcia back, but Trump is such a terrible negotiator that he can't even take one detainee off of the hands of El Salvador President Nayib Armando Bukele Ortez, whom he is paying millions of our tax dollars to house the people rendered to El Salvador; or (2) the Trump administration affirmatively wants to get away with rendering people to a human-rights-abusing prison without any due process. Pick your poison.
How will this end? The arguments in the government's stay application are all quite bad for reasons explained by Judge Xinis in her opinion yesterday and by Judge Thacker in her opinion earlier today. There is nonetheless very good reason to worry that the Supreme Court will side with the Trump administration.
This evening, after Chief Justice Roberts granted the administrative stay in Abrego Garcia's case, the Court issued a per curiam order in the other case before it involving the government's rendition of non-citizens to El Salvador. In the case involving the Venezuelan citizens, five Justices (all the men and thus all the Republican appointees except for Justice Amy Coney Barrett) reversed Judge Boasberg's temporary restraining order against removal of named plaintiffs and other class members. Not reaching the merits, it accepted the government's argument that the plaintiffs had filed in the wrong venue--D.C. district court rather than federal district court in Texas. Because the Venezuelans are now being detained in Texas, the five Justices said, they should have filed a habeas corpus action there.
With due respect, that ruling is obtuse. The Trump administration has shown an eagerness to apprehend people and move them around to defeat jurisdiction or, where jurisdiction can be established, to obtain a friendly forum. Although the per curiam opinion says that going forward the government cannot remove people until they have been given notice and an opportunity to file habeas petitions, as Justice Sonia Sotomayor (joined by Justices Elena Kagan and Katanji Brown Jackson on this point) observed in dissent, the government's evasiveness and trickery in this very case suggest that it cannot be trusted to give real notice and a real opportunity to be heard before spiriting detainees away beyond the reach of the courts.
I hope I'm wrong in perceiving the Court's per curiam in the Venezuelans' case as petty sticklerism that rewards and thus invites further gamesmanship by the Trump administration. But I don't think I am.
In order to grant the extraordinary relief it did in the Venezuelans' case, five Justices had to find that the government would suffer irreparable injury if the case were to proceed (at least through the process of ordinary judicial review) in DC district court and the DC Circuit rather than in federal district court in Texas and the Fifth Circuit. The Court also had to find that this ostensible injury outweighs the injury to the migrants themselves--many of whom appear to have no connection to Tren de Aragua.
That judgment is indeed obtuse--and it bodes ill for the Court's likelihood of perceiving the stakes properly in Abrego Garcia's case as well.
Can he actually do that? No, of course not. Will he get away with it? We will find out shortly.
--Michael C. Dorf