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Judge to Trump Administration: I Feel Unfacilitated

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After the Supreme Court ruling in the case of Kilmar Abrego Garcia, I wrote a column disagreeing with the media coverage that claimed that the Trump Administration was ordered to return Garcia to the United States from El Salvador. The Administration mistakingly sent Garcia to a foreign prison. However, the Court only ordered that the Administration “facilitate” such a return, a term it failed to define. Now, U.S. District Judge Paula Xinis is indicating that she feels unfacilitated, but it is unclear how a court should address this curious writ of facilitation.

After the ruling, many on the left claimed “Supreme Court in a unanimous decision: He has a legal right to be here, and you have to bring him back.”

The Court actually warned that the district court could order the government to facilitate but not necessarily “to effectuate” the return.

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. 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. 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. The order heretofore entered by THE CHIEF JUSTICE is vacated.

So what does that mean? As I asked in the column, “what if the Trump Administration says that inquiries were made, but the matter has proven intractable or unresolvable? Crickets.”

The Administration has made clear that it views the orders as meaning that, if El Salvador brings Garcia to its doorstep, it must open the door.

The court clearly has a different interpretation.  Judge Xinis said yesterday,

“I’ve gotten nothing. I’ve gotten no real response, and no real legal justification for not answering,” she continued, adding that if the administration is not going to answer her questions “then justify why. That’s what we do in this house.”

There is nothing worse than a feeling of being unfacilitated, but how does the court measure good faith facilitation?

Garcia is an El Salvadorian citizen in an El Salvadorian prison. The refusal of El Salvador to send the accused MS-13 gang member back effectively ends the question on any return.

Many of us suspect that El Salvador would send back Garcia if asked, but how can a court measure the effort of an Administration in communications with a foreign country?

Judge Xinis is suggesting that she will be holding someone in contempt. However, this is a discussion occurring at the highest level. Would a formal request be enough?

Is Judge Xinis suggesting that the court can require punitive or coercive measures against a foreign country to facilitate a change in its position?

The fact is that a unanimous decision of the Court is not hard when no one can say conclusively what the order means. If Judge Xinis is going to move ahead with new orders, it will find its way back to the Supreme Court.

The Court clearly (and correctly) held that Garcia deserves due process and that this removal was a mistake. As I have previously stated, the Administration should have brought him back for proper deportation. I still believe that. However, the Court also held that the President’s Article II authority over foreign policy has to weigh heavily in such questions.

As the court goes down this road, it can quickly get bogged down in subjective judgments on what constitutes facilitation. That is the can kicked down the road by the Supreme Court and it is now likely to come rattling back to the justices.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

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