The Chief Justice “Facilitates” Another Shadow Docket Compromise In Noem v. Garcia
Another day, another shadow docket compromise. This evening, the Court issued a short three paragraph per curiam opinion in Noem v. Garcia. In short, the Court found that that the District Court could not order the Executive Branch to negotiate the return of Garcia, but instead could only require the government “facilitate” Garcia’s return. This outcome was entirely predictable. On Monday, I wrote:
I think the most likely outcome is that Roberts follows the lead of Judge J. Harvie Wilkinson on the Fourth Circuit: deny the application, but “clarify” that the District Court can only require the President to “facilitate” the return of the alien.
The Chief Justice (almost certainly) wrote the per curiam order, which states:
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 toensure 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.
I nailed this one 100%. “Clarify” and “facilitate” is all that was needed.
Now, let’s get into the nitty gritty.
First, the Court repeats this strange argument that an order with a deadline in the past is no longer in effect:
Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. 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 Court employed this reasoning in the USAID case:
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
This argument makes no sense. When a court’s deadline has passed, that means the government has failed to comply with the order. It doesn’t meant he deadline is “no longe
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