Supreme Court Rules Trump Administration Must “Facilitate” Return of Illegally Deported Salvadoran Migrant
Tonight, the Supreme Court unanimously ruled that Trump Administration must “facilitate” the return of Salvadoran migrant Kilmar Abrego Garcia, whom it had illegally deported to brutal imprisonment in El Salvador’s awful CECOT prison (despite his never having been convicted of any crime). The Court largely affirmed earlier rulings by the district court and Fourth Circuit. This is an important win for immigrant rights. The justices rejected the administration’s dangerous position that it can deport and imprison anyone it wants – including US citizens – and then be immune from judicial review, so long as the incarceration is done by a foreign state, even one acting at the direction of the US government.
But there is an unfortunate ambiguity in the Court’s ruling. Here is the key passage:
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 ambiguity here is what exactly it means to “facilitate” Abrego Garcia’s return to the US. Does it require the government to do everything possible to ensure that return, merely make some token effort, or something in between? To my mind, the best interpretation is “everything possible.” That reading is implied by the Court’s admonition that the government must “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The only way to do that is to actually return him!
As a practical matter, Abrego Garcia is only being held by El Salvador because the US government wants him to and is paying the Salvadoran government to incarcerate him and other deportees (including many illegally deported under the Alien Enemies Act). All Trump has to do to get any of these people released is credibly convey to the Salvadoran that that is what he wants. But I worry the Trump administration will drag its feet and claim all the Supreme Court ruling requires is make a pro forma request that the Salvadorans know they could refuse without suffering any adverse consequences.
In my analysis of the lower court rulings, I explained why,
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