The Trump administration isn't defying the letter of Thursday's Supreme Court ruling. But it's daring the federal courts to take much more aggressive steps to block its immigration policies.
If, as you correctly say, a federal court can order the administration "to request" Garcia's return, that constitutes ordering the executive branch to do something. So it's not correct, as you then say later, that "federal courts can't tell the executive branch what to do." You were right the first time.
Bukele positing he'd have to "smuggle" Garcia into the US - brazenly included in DOJ's progress filing yesterday - is direct evidence that the US has *not* asked for his release, nor met even DOJ's low bar of domestic facilitation. They literally told on themselves.
I should add that domestic facilitation includes the United States Embassy in El Salvador, which is considered US territory. Bukele could just deliver him to the Embassy.
Sen. Chris Van Hollen (D-MD) said yesterday that he intends to go to El Salvador to check on K.A.G.'s condition and discuss his release. Several other (Democratic) members of Congress said they plan to join him. Just like the $millions of our tax dollars spent on Trump's frivolous trips back-and-forth to Mar-A-Lago (to play golf), the costs in time, fuel, etc for these lawmakers to travel to El Salvador would be totally avoided if the Trump administration would just "facilitate" K.A.G.'s return like they are legally obligated to do.
It also directly contradicts the government’s position in court on what “facilitate” means in the immigration context — to remove any domestic obstacles for K.A.G’s return.
Isn't this a direct violation of the Supreme Court order? Not just in spirit, but in letter. Steve says that the Trump administration would be complying with the Supreme Court order if they had actually tried to bring Abrego Garcia back to the US and failed, but as Steve himself says, the Trump administration didn't even try to bring Abrego Garcia back to the US, and this seems like a violation of the letter of the Supreme Court order. Many people were worried that Trump would play a charade with Bukele to feign obedience to the Supreme Court order, but he did not even do that.
It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador. I'm just spitballing here but my guess is that Judge Xinis will order the DOJ attorney this afternoon to produce a witness, person most knowledgeable of the efforts undertaken to facilitate his return at the next hearing. The DOJ will resist that order and it'll be time to run the clock again at SCOTUS. We are between a rock and a hard place. The solution is to rally en masse and march. The when and where will be decided by people far above my pay grade.
>"It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador."
I understand that, but this isn't just about him, it's also about setting the precedent that there can be real and substantial consequences to the Executive branch's complete disregard for the federal courts. The Executive branch is just going to keep playing this game of delay and inadequate compliance until the courts do something to make them stop.
The problem with trying to censure the staff of a sitting president: it takes mere minutes for him to issue a pardon for any acts committed.
Also, the likely architect of this entire plan is Stephen Miller, a.k.a. Goebbels 2.0, and if he's ever held accountable for his actions, it may need to be at The Hague. (The Nazis went into hiding after WWII – why wouldn't Trump et al?)
Just like the Salvadoran dictator could not have excused his not returning Mr. Garcia as smuggling if the president had asked him to do so, President T cannot say it is impossible to facilitate Mr. Garcia’s return without , at least asking for that. And I believe a majority of Americans will soon realize that anything less is an absurdity. And this whole situation, handling of immigrants who have reached into our borders, seems to me closer to a domestic issue than foreign affairs!
What a tragedy that the American people cannot trust in any way, shape, or form that their president will do the right thing when the government is in error in such a devastating way as to, in all probability, end an innocent man's life in a torture prison. Not only that, but the president's mental illness creates in him a condition called 'megalomania,' in which he believes that he is never wrong, and that the entire country not only belongs to him, but he IS the country.
Thank you for the clear, organized and evidence-based explanation of this Constitutional crisis and possible resolution. Looks like SCOTUS may have an opportunity to "facilitate" Trump (and his administration's) respect for our system of checks and balances, the power of judicial review and the rule of law.
Timothy Snyder accurately describes what is unfolding as state terrorism, one of the defining features of despotic regimes. With this crowd in power one can now easily imagine a heretofore unimaginable scenario in which, say, a federal judge who irks Trump is arrested in the middle of the night and whisked away to a foreign prison beyond the reach of law.
I suppose they'll start by deporting U.S. citizens convicted of horrific violent crimes to CECOT to get people used to the idea, and only then move on to people who "threaten our national security" by speaking out against the government's policies.
We are paying the Salvadoran government to house some of our deportees. You would think that that fact gives us some leverage over that government. The claim made by Trump and Bukele that Abrego Garcia's detention cannot be undone is ridiculous.
I like your post, it is well written and I agree with virtually everything you're saying and the conclusions you're coming to. However, I feel like you're totally glossing over the DoJ's actions in refusing to comply with lawful orders from the District Court. Don't you think that any take on this requires some analysis on the fact that, for instance, all 3 status reports filed by the DoJ are noncompliant? 2 of the 3 were late. The first one included one of the 3 required details, the other 2 did not include any. Etc.
Yeah, it's unclear to me why that's not a huge problem for the government. They have refused to answer two of the questions and haven't been on time for an order for a week. I'll take a blunt "because it's the executive branch," if that is truly the answer
We should get an update today on that at least. Another hour till the hearing. I expect whichever lawyer shows up to claim they know nothing. Hopefully that means we will get sanctions.
If that happens, I wouldn't be surprised if Pam Bondi fires or puts the attorney on leave like happened with Erez Reuveni (the DOJ's version of 'disappearing' one of their own).
I'm not sure if it's "glossing over" as much as the DOJ lawyers' actions not being particularly germane. If the Trump administration was a cartel – actually, there are arguments that it's *already* a cartel – then DOJ attorneys would be the rough equivalent of the street dealers who hang out on urban street corners.
They have no clue what's going on further up the food chain, entirely by design.
Sorry for being picky Steve, but I think his forename is “Kilmar”, rather than “Wilmar”
Yikes. Good catch!
I might have limited vision but I was able to spot that one!
Fixed in the permanent version. Thanks for flagging.
Most refreshing to read a non-hyper analysis of what is really going on in the legal world. Thank you.
If, as you correctly say, a federal court can order the administration "to request" Garcia's return, that constitutes ordering the executive branch to do something. So it's not correct, as you then say later, that "federal courts can't tell the executive branch what to do." You were right the first time.
This is an excellent analysis of the dilemma facing Judge Xinis. Thank you.
I appreciate your nuance and insight on where the judicial daylight occurs. It's not easy to be informed these days...
Bukele positing he'd have to "smuggle" Garcia into the US - brazenly included in DOJ's progress filing yesterday - is direct evidence that the US has *not* asked for his release, nor met even DOJ's low bar of domestic facilitation. They literally told on themselves.
I should add that domestic facilitation includes the United States Embassy in El Salvador, which is considered US territory. Bukele could just deliver him to the Embassy.
Sen. Chris Van Hollen (D-MD) said yesterday that he intends to go to El Salvador to check on K.A.G.'s condition and discuss his release. Several other (Democratic) members of Congress said they plan to join him. Just like the $millions of our tax dollars spent on Trump's frivolous trips back-and-forth to Mar-A-Lago (to play golf), the costs in time, fuel, etc for these lawmakers to travel to El Salvador would be totally avoided if the Trump administration would just "facilitate" K.A.G.'s return like they are legally obligated to do.
It also directly contradicts the government’s position in court on what “facilitate” means in the immigration context — to remove any domestic obstacles for K.A.G’s return.
Isn't this a direct violation of the Supreme Court order? Not just in spirit, but in letter. Steve says that the Trump administration would be complying with the Supreme Court order if they had actually tried to bring Abrego Garcia back to the US and failed, but as Steve himself says, the Trump administration didn't even try to bring Abrego Garcia back to the US, and this seems like a violation of the letter of the Supreme Court order. Many people were worried that Trump would play a charade with Bukele to feign obedience to the Supreme Court order, but he did not even do that.
Monetary sanctions aren't going to be enough. Somebody in the administration needs to go to jail for contempt of court if they continue to not comply.
It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador. I'm just spitballing here but my guess is that Judge Xinis will order the DOJ attorney this afternoon to produce a witness, person most knowledgeable of the efforts undertaken to facilitate his return at the next hearing. The DOJ will resist that order and it'll be time to run the clock again at SCOTUS. We are between a rock and a hard place. The solution is to rally en masse and march. The when and where will be decided by people far above my pay grade.
>"It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador."
I understand that, but this isn't just about him, it's also about setting the precedent that there can be real and substantial consequences to the Executive branch's complete disregard for the federal courts. The Executive branch is just going to keep playing this game of delay and inadequate compliance until the courts do something to make them stop.
Is that true? I think she could quickly throw someone in jail for civil contempt and keep them there until they comply with her orders.
The problem with trying to censure the staff of a sitting president: it takes mere minutes for him to issue a pardon for any acts committed.
Also, the likely architect of this entire plan is Stephen Miller, a.k.a. Goebbels 2.0, and if he's ever held accountable for his actions, it may need to be at The Hague. (The Nazis went into hiding after WWII – why wouldn't Trump et al?)
Such a helpful analysis! I needed it and will now”manage” my subscription.
Just like the Salvadoran dictator could not have excused his not returning Mr. Garcia as smuggling if the president had asked him to do so, President T cannot say it is impossible to facilitate Mr. Garcia’s return without , at least asking for that. And I believe a majority of Americans will soon realize that anything less is an absurdity. And this whole situation, handling of immigrants who have reached into our borders, seems to me closer to a domestic issue than foreign affairs!
What a tragedy that the American people cannot trust in any way, shape, or form that their president will do the right thing when the government is in error in such a devastating way as to, in all probability, end an innocent man's life in a torture prison. Not only that, but the president's mental illness creates in him a condition called 'megalomania,' in which he believes that he is never wrong, and that the entire country not only belongs to him, but he IS the country.
Thank you for the clear, organized and evidence-based explanation of this Constitutional crisis and possible resolution. Looks like SCOTUS may have an opportunity to "facilitate" Trump (and his administration's) respect for our system of checks and balances, the power of judicial review and the rule of law.
Timothy Snyder accurately describes what is unfolding as state terrorism, one of the defining features of despotic regimes. With this crowd in power one can now easily imagine a heretofore unimaginable scenario in which, say, a federal judge who irks Trump is arrested in the middle of the night and whisked away to a foreign prison beyond the reach of law.
I suppose they'll start by deporting U.S. citizens convicted of horrific violent crimes to CECOT to get people used to the idea, and only then move on to people who "threaten our national security" by speaking out against the government's policies.
We are paying the Salvadoran government to house some of our deportees. You would think that that fact gives us some leverage over that government. The claim made by Trump and Bukele that Abrego Garcia's detention cannot be undone is ridiculous.
which the administration knows quite well and says in all but words.
Can you elaborate on how monetary sanctions against Noem would work?
I feel like at this point, it's likely that Trump will ignore court rulings all the way to the end, and it's the enforcement that really matters.
I like your post, it is well written and I agree with virtually everything you're saying and the conclusions you're coming to. However, I feel like you're totally glossing over the DoJ's actions in refusing to comply with lawful orders from the District Court. Don't you think that any take on this requires some analysis on the fact that, for instance, all 3 status reports filed by the DoJ are noncompliant? 2 of the 3 were late. The first one included one of the 3 required details, the other 2 did not include any. Etc.
Yeah, it's unclear to me why that's not a huge problem for the government. They have refused to answer two of the questions and haven't been on time for an order for a week. I'll take a blunt "because it's the executive branch," if that is truly the answer
We should get an update today on that at least. Another hour till the hearing. I expect whichever lawyer shows up to claim they know nothing. Hopefully that means we will get sanctions.
If that happens, I wouldn't be surprised if Pam Bondi fires or puts the attorney on leave like happened with Erez Reuveni (the DOJ's version of 'disappearing' one of their own).
I'm not sure if it's "glossing over" as much as the DOJ lawyers' actions not being particularly germane. If the Trump administration was a cartel – actually, there are arguments that it's *already* a cartel – then DOJ attorneys would be the rough equivalent of the street dealers who hang out on urban street corners.
They have no clue what's going on further up the food chain, entirely by design.
I was going to say, Whadda you mean *if*?
Can the courts simply prevent this offshoring of detention because it places subjects beyond the reach of habeas?