The Situation: Twenty Questions

The Situation on Wednesday asked—in a series of run-on sentences—how a very fine district judge handles a completely defiant litigant when that litigant just happens to be a coordinate branch of government.

Today, let’s zoom way way out. Let’s not focus on the names of deportees, or the facts of their cases, or the specific legal arguments before the two district judges to whom fate has dealt the job of handling the El Salvador renditions. Let’s not focus on the rhetoric of Judge J. Harvie Wilkinson or how the Supreme Court may handle these cases.

Instead, here is a simple list of questions these two cases together present, all framed at a high level of altitude so as to explain—simply and concisely—what the stakes are as they both make their ways back up the appellate ladder. 

(1) Can the government, unilaterally and without notice, vanish a person and put him or her on a plane to a prison overseas without any kind of due process of law?

(2) Can the government do this based on a 1798 statute that, by its terms, requires a declared state of war between the United States and another country, or an invasion of the United States by that country, when there is no declared state of war with the country of nationality of the deportees and when there is no invasion of the United States by the country?

(3) Can the president by proclamation circumvent this apparently clear statutory requirement by declaring that a gang is in cahoots with the government of the country and that its illegal immigration to the United States constitutes an invasion?

The Supreme Court has already more or less answered the first of these questions, declaring unanimously that “detainees subject to removal orders under the [Alien Enemies Act (AEA)] are entitled to notice and an opportunity to challenge their removal.” But not before two plane loads of detainees were sent to a prison in El Salvador—detainees the administration has no intention of bringing back to afford the rights the justices now say they had. Moreover, the second two questions the justices specifically reserved and remain live ones.

The questions don’t stop there:

(4) Assuming the answer to the first question is, as the Supreme Court has said, in the negative and that the government acts lawlessly when it summarily deports people to indefinite confinement at a foreign prison with no notice or process, does it get to reap the benefits of that lawlessness and effectively evade the judicial review to which is should have been subjected?

(5) Specifically, how far can a court go in ordering that a given deportee be brought back to the United States and given the process he was denied? The Supreme Court said it was fine for a court to order the government to “facilitate” someone’s return, but ordering the government to “effectuate” that return might be a step too far, depending on how one understands the word “effectuate.”

(6) So does the government get to argue that a mistaken deportation is non-remediable because the detainee is now in the custody of a foreign government and U.S. courts have no power over foreign governments and no power to direct the conduct of U.S. foreign policy?

(7) Does it get to argue that intentional deportations that were, we now know, lawless can’t be undone for the same reasons?

(8) And does it affect the answer to either of the previous two questions if the United States is actively paying the foreign government to detain the individuals and thus that government may be acting as an agent of the United States?

So far, these questions are all substantive; they concern what the rules are regarding the deportations themselves. But now things get a little meta, because there are also a bunch of questions about whether the courts even get to answer the questions. Consider:

(9)   If the government has deported a bunch of people lawlessly, does the court get to meaningfully inquire about how that lawlessness came about? If, say, the government defied a specific order, can a judge endeavor to find out which specific government decided to violate the order?

(10)  Similarly, if a judge has ordered that the government “facilitate” a detainee’s return, does she get to inquire into what steps, if any, it has taken to do so?

(11) If she has ordered that the government outline the steps it plans to take, can the government simply stiff her on the answer to that question?

(12) If she orders daily status updates, can the government file daily “no change” notices?

(13) Can the executive branch simply refuse to answer questions about whether it is paying the government of El Salvador to hold deported detainees—thus obfuscating whether the deportees are still in constructive U.S. custody?

(14) Does it affect the answers to any of these questions if, even as the litigation is ongoing, the White House press office tells its 8.4 million followers on Instagram that “he is NOT coming back” notwithstanding that Supreme Court ruling that the district court’s “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”?

(15) Does it affect the answers to any of these questions if, even as the litigation is ongoing, the president and the president of El Salvador in the Oval Office publicly mock the Supreme Court and each pretend they have no power to undo the wrong they have and have aides brandish outright lies about what the courts did and said on the subject?

Most important, the cases pose five key questions about the powers of the courts to effectuate—not facilitate, mind you, but effectuate—their own orders when the party in contempt is the president:

(16)  Does the court system—and by the court system, I mean a stable majority of the Supreme Court justices—have the will to have this confrontation?

(17) Does the court system have the coercive tools to have this confrontation?

(18)  Will any degree of executive defiance induce Congress to bestir itself on behalf of the court system as the confrontation becomes acute?

(19) Does the electorate care enough to ensure that there is a Congress that will bestir itself to defend the integrity of a coordinate branch of government?; and finally

(20) Can America wait that long? 

The Situation continues tomorrow.