Portside

Yesterday, the Supreme Court did the bare minimum to force the Trump administration to follow the law. More than three weeks after a man was illegally renditioned to a Salvadoran gulag, the justices ordered the government to start thinking about getting him back. At some point. If it’s not too much trouble.

Slow fucking clap.

Kilmar Abrego Garcia, 29, came to the United States when he was 16. He was granted an order withholding removal to his native El Salvador after convincing an immigration judge in 2019 that he was likely to be killed by the MS-13 gang. Nevertheless, he was deported to El Salvador on March 15, based on the government’s claim that he is himself a member of MS-13. The Justice Department presented zero evidence in court to back up this claim, although White House Press Secretary Karoline Leavitt pinky promises that she’s seen the proof. Instead, when the man’s American wife sued in federal court in Maryland, it sneered that renditioning a person, even in violation of court order, put him beyond the jurisdiction of American courts.

On Friday April 4, Judge Paula Xinis ordered the government to get Abrego Garcia back by midnight Monday. The Fourth Circuit told the DOJ to get bent, but hours before the deadline, the Supreme Court swept in and administratively stayed Judge Xinis’s edict.

Finally, last night the majority issued an unsigned, three-paragraph opinion, upholding Judge Xinis’s order — minus the deadline — with a caution that the trial court should “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” The Court mumbled some nonsense (cribbed from Judge Wilkinson’s concurrence below) about differentiating between “effectuating” and “facilitating” the return of a man everyone agrees was illegally deported, and instructed the government to “be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

If Chief Justice Roberts aimed to avoid a crisis where the government stands in open defiance of a federal judge, he managed to hold it off for less than 24 hours.

Judge Xinis immediately set a hearing for 1pm today and ordered the government to explain by 9:30am “(1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendants will take, and when, to facilitate his return.”

When the DOJ complained that it could not possibly comply with such a short deadline, huffily protesting that the court was disregarding the “due regard for the deference owed to the Executive Branch” mandated by the Supreme Court’s order, the judge relented. She gave them until 11:30am to turn in their homework. LOL.

At 12:15, 45 minutes after the deadline, the government docketed the equivalent of two middle fingers.

Defendants are not in a position where they “can” share any information requested by the Court. That is the reality. Defendants received the order late in the evening last night. They are reviewing the order and actively evaluating next steps. It is unreasonable and impracticable for Defendants to reveal potential steps before those steps are reviewed, agreed upon, and vetted. Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.

Notably, this filing had four attorneys’ names and no signature, wet or otherwise.

As of this writing, the hearing is still ongoing. According to Lawfare’s Anna Bower, who is live-posting it, the government remains outright defiant.

Can we get another round of applause for the Chief? This plan to throw District Court judges under the bus as a means of appeasing the executive is working out fantastic.

Abrego Garcia v. Noem [District Docket via Court Listener]

Noem v. Abrego Garcia [SCOTUS Docket]