ICE swept up a Maryland man and deported him to the infamous prison in El Salvador for terrorists and hardened criminals. But Abrego Garcia was not a terrorist or a gang member. The Trump administration admitted that his arrest and detention was an “administrative error” but claimed that he could not be returned because he was no longer in U.S. jurisdiction. The lower federal courts ordered the administration to bring him back. The Trump administration objected–unwilling to bring home an innocent victim of their error–and the case went to the Supreme Court. The Supreme Court released a unanimous ruling that seemed to favor the return of Abrego Garcia.
Allison Gill took a close look at the decision and finds many opportunities in its decision to keep Mr. Garcia imprisoned.
She wrote:
It appears to be a victory – that the Supreme Court “unanimously” agrees that the government must “facilitate” the return of Abrego Garcia – the Maryland father that was disappeared to the CECOT torture prison in El Salvador on a government-admitted “administrative error.”
But the Supreme Court did the wrong thing here by even bothering to weigh in.
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Do you remember in the immunity ruling, when the Supreme Court sent the case back down to Judge Chutkan after they made their “rule for the ages?” They shoved their robes where they didn’t belong because they should have just denied Trump’s application. Remanding it back to the District Court left the door open for Judge Chutkan’s clarification on official acts to be appealed again – all the way back up to the Supreme Court if necessary – so that the supremes could once again have final say over what the lower court had decided. It also had the added bonus of tacking at least another year of delay onto the case – provided the Supreme Court would have let the case live after the second go-round.
In the Abrego Garcia case, the liberal justices say they would have denied Trump’s application outright, leaving the lower court order in place:
Because every factor governing requests for equitable relief manifestly weighs against the Government, Nken v. Holder, 556 U. S. 418, 426 (2009), I would have declined to intervene in this litigation and denied the application in full. (Statement of Justice Sotomayor, with whom Justice Kagan and Justice Jackson join.)
Technically, the ruling is unanimous because the three liberal justices ultimately agree with the court’s ruling, but by intervening instead of denying the application outright, the Supreme Court is asking the District Court to clarify it’s ruling “with due regard” to Trump:
The rest of the District Court’s order remains in effect but requires clarification on remand.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. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.
The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. I mean, you could park a truck in that sentence. It might as well say “Hey District Court, go ahead and give it a shot but don’t cross the blurry lines we aren’t going to draw and don’t break the secret rules which we aren’t going to tell you about. See you in a month!”
They were super vague on their instructions to the lower court in the immunity ruling, too: virtually guaranteeing the case would come before them again. Remember Footnote 3? It was about as clear as mud:
“[a] prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. … What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. … And such second-guessing would threaten the independence or effectiveness of the Executive.”
And just as with the immunity ruling, the Supreme Court will likely get another review of whatever the court orders the Trump administration to do to return Abrego Garcia. Because I’m pretty sure that the government isn’t going to want to do what the lower court tells it to, nor will it be forthcoming with the steps it’s taking to comply with court orders. The Trump administration will say “The Supreme Court told you to have deference for how we conduct foreign affairs. You’re not deferencing enough.”
So yes, it’s awesome that the Supreme Court didn’t outright abandon Abrego Garcia, but now we’re going to potentially drag out the remedy – while a man is wrongfully imprisoned in a gulag – and give the Supremes another at-bat when things don’t go smoothly. The high court should have outright denied the application, just as they should have done in the immunity case.
Just my two cents.
~AG
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