Bench Memos
Some Observations on Strong Supreme Court Ruling Requiring Trump Administration to ‘Facilitate’ Return of Wrongly Deported Alien
The Trump administration has acknowledged that, as a result of an “administrative error,” it illegally removed to El Salvador an illegal alien, Kilmar Armando Abrego Garcia, who was subject to a withholding order that forbade his removal to El Salvador. Abrego Garcia has been detained since mid-March in a prison in El Salvador that the Trump administration is paying El Salvador to provide. Despite acknowledging that it illegally removed Abrego Garcia, the Trump administration has not sought to return him to the United States. Indeed, it has aggressively fought a district-court order entered on April 4 that calls for it to “facilitate and effectuate” his return.
In an order yesterday evening in Noem v. Abrego Garcia, the Supreme Court, without any justice registering a dissent, ruled that the district-court 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.” The Court’s order states that the “intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority.” It tells the district court to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” It also 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 Trump administration’s initial response verges on defiant. A DOJ spokesman yesterday evening released this confused and inaccurate statement:
As the Supreme Court correctly recognized, it is the exclusive prerogative of the President to conduct foreign affairs. By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.
Some observations:
1. The Trump administration completely deserves this loss. As Justice Sotomayor points out in her separate opinion, the Trump administration’s position “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.” (The fact that I am agreeing with Sotomayor signals how ludicrous DOJ’s position is.)
2. The notion that the Trump administration could not readily secure Abrego Garcia’s return is difficult to take seriously. Are we really to believe that the “Art of the Deal” president has struck a deal with El Salvador that prevents him from obtaining the return of individuals that have been wrongly deported?
3. Insofar as the district court’s order is (implausibly) interpreted to require President Trump to “effectuate” the return of Abrego Garcia by, say, threatening to break off diplomatic operations with El Salvador or ordering a military rescue, then it would not show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” But if the district court leaves it to the Trump administration to figure out the means and allows for the theoretical possibility that there might be no effective means available, it would be difficult to see any difficulty with the order.
4. Contrary to the DOJ statement, the Supreme Court did not “recognize” that “it is the exclusive prerogative of the President to conduct foreign affairs.” Further, unless it is very narrowly construed, that proposition is not sound. To cite just a few examples: Congress has the authority to “declare War … and make Rules concerning Captures on Land and Water.” The Senate has the authority to approve or reject treaties. The Senate has the authority to confirm or reject the president’s nominees to be ambassadors. Congress has the authority to “regulate Commerce with foreign Nations.” Congress has the authority to make immigration laws. The federal courts have the authority to interpret treaties as well as all the laws that Congress enacts that bear on foreign affairs.
As for the president’s non-exclusive power to conduct foreign affairs: That power has a core and a periphery. Dealing with a foreign country to serve as a prison contractor would sure seem to me to lie near the outer part of the periphery, if not entirely outside it. The Court’s ruling demonstrates its firm judgment that a district court does not “seize control of the President’s authority to conduct foreign policy” when it directs him to “facilitate” and (within broad bounds) “effectuate” the return of a person it has unlawfully deported.
5. In the immediate aftermath of the Supreme Court’s order, federal district judge Paula Xinis revised her order and directed the Trump administration to “take all available steps to facilitate the return” of Abrego Garcia. We shall see if, and how quickly, the Trump administration complies. If it doesn’t, or if it drags its heels, a momentous clash may be in the offing.