Nearly one month has gone by since Kilmar Armando Ábrego García, a Maryland husband and father whom an immigration judge had expressly allowed to remain in the United States years ago, was taken from his family, put on a plane, and sent to a so-called “terrorism confinement center” in El Salvador. The Trump administration did this in our names by mistake and without legal authority, acknowledging in a court of law that an “administrative error” had caused this unlawful disappearance. Worse, in his petition to the Supreme Court, where the government has forcefully resisted a judge’s order and deadline to bring Ábrego García back home, the new solicitor general, D. John Sauer, took a hard line against every judge in the nation who dares set timelines for the government to comply with commitments and laws it has broken.
“If this precedent stands,” the newly confirmed Sauer wrote, “other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business. Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.” Once a person is out of the country and in a foreign gulag, in other words, there’s nothing the courts can do.
Late on Thursday, the Supreme Court of the United States did not order the Trump administration to bring Ábrego García back immediately. Yet in a kind of compromise, which all the justices endorsed, the court did agree that a judge’s order to “facilitate and effectuate” his return could stand but needs “clarification”: What did the Maryland federal judge, Paula Xinis, mean by the word effectuate? This lower court, the Supreme Court said, “should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” The Court added: “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 qualified victory for Ábrego García, and his lawyers are rightfully thrilled. “The rule of law won today,” Andrew Rossman, one of his lawyers, said last night. “Time to bring him home.” Xinis moved right along, issuing an order Thursday evening asking the Trump administration to do three things, two of which the government should already be doing, and to let her know in a court filing by this morning where things stand. The administration must tell the judge “the current physical location and custodial status” of Ábrego García; “what steps, if any,” the government has already taken in response to her initial order; and “what additional steps Defendants will take, and when, to facilitate his return.”
But if the government’s recent conduct in this case and others is any guide, the Trump administration is expected to drag its feet again. Indeed, just minutes before the Friday deadline for an update, Drew Ensign, the same Justice Department lawyer who has been handling a separate case challenging the summary deportation of Venezuelans the government deems “alien enemies”—more on him and that case later—filed what can be fairly described as a last-minute objection. Too fast, too soon, Ensign complained: Give us more time. He even stopped short of accusing Xinis that she is the one not following the Supreme Court’s new order; the judge was none too pleased. In a swift order on Friday morning, she told the department that the need for an extension “blinks at reality,” and rejected the suggestion that she’s not following the Supreme Court’s directive. “Nothing,” she wrote, “could be further from the truth.”
The Justice Department insisted on having the last word, responding past the judge’s deadline that the government is “not in a position” to share an update: “That is the reality.”
At a combative afternoon hearing on Friday, Ensign had nothing of substance to offer the judge.
All of this writing was already on the wall. Justice Sonia Sotomayor, joined by Justice Elena Kagan and Justice Ketanji Brown Jackson, underscored how extreme the Trump administration’s ultimate position in the Ábrego García case has been from the start: The government had asked the justices to leave him stranded in an El Salvadoran prison, without any legal recourse at all. “The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong,” Sotomayor wrote.
But she also touched on how the administration’s position could be used to justify anyone’s rendition to a far-away nation: “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene,” she wrote. “That view refutes itself.”
As the liberal justices reminded readers of the court’s short order, that’s the view the Trump administration is also taking in another case, J.G.G. v. Trump, where a group of Venezuelan migrants is challenging their designation of “alien enemies” subject to a centuries-old wartime statute that hasn’t been invoked since World War II. There, the Trump administration’s conduct is even more indefensible: anyone subject to a presidential proclamation declaring them enemies of the state can be summarily deported, without a hearing. And the deportations can be en masse and maybe even in secret, as happened with hundreds of people who were boarded on planes and sent to CECOT—the name of the prison in El Salvador—without a chance to even contest the government’s actions. As Sotomayor wrote earlier this week in that case, the “government’s resistance to facilitating the return of individuals erroneously removed to CECOT only amplifies the specter that, even if this Court someday declares the President’s Proclamation unlawful, scores of individual lives may be irretrievably lost.”
The reason no one should celebrate the Supreme Court’s ruling for Ábrego García is that, throughout this and other cases, the government’s conduct has been far from exemplary. Just last weekend, as the administration was rushing to appeal the judge’s order to return Ábrego García, two experienced Justice Department lawyers were put on administrative leave for being too candid with Judge Xinis. One of them had a hard time answering straightforward questions and at one point conceded that his “client”—the US government—could not give him “satisfactory” answers about the circumstances surrounding the Ábrego García case. Attorney General Pam Bondi defended the moves. “You have to vigorously argue on behalf of your client,” she told Fox News.
And in the case of the Venezuelan migrants who were disappeared without a hearing, the Justice Department has done everything but cooperate with the courts. The Trump administration has, among other things, invoked the state-secrets privilege, all but telling the judge assigned to the case, James Boasberg, that he’s not entitled to know anything about the Venezuela-bound planes he ordered returned; has accused him of misconduct and requested a new judge; and has claimed that Article II of the Constitution doesn’t allow judges to inquire about what kind of arrangements the administration has made with the government of El Salvador. At a hearing last week, Boasberg grilled Ensign for how the government conducted itself early in the litigation—especially on the day he ordered the planes returned and the Trump administration ignored him. The judge said there is a fair likelihood that “the government acted in bad faith throughout that day.”
Taking stock of all this behavior in the J.G.G. case, including the government’s response to Boasberg’s due diligence, Sotomayor—joined by Kagan, Jackson, and Justice Amy Coney Barrett in dissent—was simply appalled. And she faulted the majority led by Chief Justice John Roberts for turning a blind eye to it. “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” she wrote earlier this week. “That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”
The only time to celebrate will be when Kilmar Ábrego García is back home with his family.
