The Situation: Missing

The Situation this weekend declared that “we have a test case on our hands,” for the Trump administration’s defiance of court orders, “one that should give us a good window into whether the courts are able to hold the administration to the law.”

We may have another test case.

The issue in this case is related, though inflected slightly differently from the contempt matter currently before Chief Judge Boasberg about which I wrote on Saturday. This case involves a man named Kilmar Armando Abrego Garcia, whom the government acknowledges it snatched off the street and deported to El Salvador as a result of an administrative error. The government alleges that Abrego Garcia, who was not removed under the Alien Enemies Act but is now in the Salvadoran rent-a-gulag, is a member of the notorious MS-13 gang, but it has provided no evidence of this whatsoever, and it has never charged him with a crime.

Abrego Garcia, in a prior immigration proceeding, had been found to be deportable but had a specific “withholding of deportation” to El Salvador—which is precisely where the government sent him—as a result of likely oppression from gangs.

On April 4, U.S. District Judge Paula Xinis in Maryland ordered that the government “facilitate and effectuate” Abrego Garcia’s return to the United States by 11:59 p.m. tonight—though the government claimed the district court has no power to order this because Abrego Garcia is now in Salvadoran, not American custody. Judge Xinis formalized this order in a subsequent written opinion.

The government—with its usual penchant for retaliation against the so-called Deep State—responded to Judge Xinis’s ruling by placing the lawyer who had argued the matter for it, along with his boss, on administrative leave and denouncing him on national television for not being zealous enough in his advocacy. It also asked the U.S. Court of Appeals for the Fourth Circuit to stay the order.

But this morning, an ideologically mixed panel of the court declined to do so. Two of the judges described the case thus: “The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.” The third concurred, writing, “There is no question that the government screwed up here.”

But while there may be no question that the government screwed up, the government is certainly making a question out of whether the court has any power to do anything about its screw-up.

Its position boils down to this: We lost the plaintiff fair and square, so the courts can’t give him any relief now.

The government has now gone to the Supreme Court, and about eight hours before the midnight deadline, Chief Justice John Roberts issued an administrative stay of Judge Xinis’s ruling. This means that the proverbial fecal collision with the fan likely won’t take place when the clock strikes midnight.

But it’s coming—unless, that is, someone backs down.

One possible climbdown is that the Supreme Court could adopt the government’s view that the courts lose all their powers of redress when the government abducts a plaintiff, deports him to the country it was forbidden to send him to, and then loses him in a prison there. While nobody ever got rich betting on the moderation of the Roberts Court, color me a little skeptical that there are five votes on the Supreme Court in favor of this eccentric position.

Another possibility is that the government itself climbs down. Color me skeptical on this point too. The tone of indignance in the solicitor general’s brief to the Supreme Court is remarkable given the government’s conduct here. The brief reads: “[W]hile the United States concedes that removal to El Salvador was an administrative error, that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight.” 

Remember that the record contains no evidence that Abrego Garcia is, in fact, an MS-13 member and that MS-13 has only achieved the lofty status of a “terrorist organization” by dint of a State Department designation that took place a few weeks ago.

Short of that, the government might make some gesture toward trying to bring him back, so it can at least argue to Judge Xinis—if and when she gets the case back—that it didn’t defy her order but endeavored unsuccessfully to comply. This strikes me as perhaps the most likely outcome. It would turn the litigation into an argument between the executive branch and the judiciary over whether the government had tried in good faith, whether it could do more, and whether the courts have the power to order it to do more. That’s a much more comfortable ground for disputation when you’ve accidentally shipped someone off to the gulag rather than whether you can just wash your hands of the matter because you’re paying a sovereign government to hold him there.

But it’s also possible, given how aggressive the government has been in this case, that it will simply let Judge Xinis’s deadline come and go. With Judge Boasberg, who ordered the planes flying deportees to El Salvador turned around, someone decided not to follow that order and then fight later with the judge about whether they had defied the order, whether he had the power to issue it, and whether he could even figure out who had made this decision. Judge Boasberg is now going through a process to determine whether and whom to hold in contempt—and the process turns out to be nontrivial.

Perhaps the government reasons that Judge Xinis won’t be as committed as Boasberg or even that neither she nor Boasberg will succeed in identifying the contumacious party. Perhaps the government hopes that its claim that while it would love to correct its error but it just can’t—Salvadoran prisons being what they are and sovereignty being what it is and Salvadoran President Nayib Bukele being the sort of guy he is—will have legs in a lengthy back-and-forth after the deadline passes. Perhaps officials imagine that they can just establish their facts on the ground and that the courts will find a way to accommodate themselves to those facts.

All of which works just fine until the day it doesn’t work anymore. Because Judge Boasberg is holding another contempt hearing tomorrow. Because the Supreme Court’s administrative stay in this case won’t last forever. Because there are hundreds of other district judges around the country who expect their orders to be complied with. Because you can’t fire every lawyer at the Justice Department who behaves with candor toward those judges about the government’s behavior. Because you can’t pay strongmen to hold prisoners for you and then claim you are powerless to get them back. And because at the end of the day, you can’t kidnap people off the streets and ship them to El Salvador and then wax indignant about the overweening federal judges who tell you to bring them back—at least not credibly.

The Situation continues tomorrow.