The Supreme Court Just Set Up a Potentially Huge Clash With Trump
Aaron Blake The Washington Post
The court issued a major ruling against Trump’s deportation efforts, but that’s far from the end of it.
But the situation is far from over. And it has raised the possibility of a high-profile constitutional clash, one in which the Trump administration could seemingly test the authority of the nation’s highest court.
It’s a hugely important case that just became even more important. So let’s break down where we are and where it goes from here.
The Supreme Court upheld a lower-court ruling that ordered the administration to “facilitate” the return of a Maryland man whom the administration has admitted it wrongly deported to a notorious prison in El Salvador. Very notably, the high court order featured no dissents, even from the most Trump-aligned justices. That made the court at least appear unanimous in ruling against the administration.
The administration had argued that it has no power to return Kilmar Abrego García because the Salvadoran immigrant is no longer in U.S. custody. But the case raised concerns that a favorable ruling for the administration by the justices would effectively allow it to deport people — even illegally — before courts could weigh in on individual cases. Some critics have even posited that such a ruling could green-light unreviewable deportations of U.S. citizens who run afoul of Trump, as the court’s three liberal justices noted Thursday.
Standing in the way of that prospect would seem to be an obvious position for the Supreme Court to take. But the matter is far from settled. And perhaps more than at any other point in Trump’s three months of pushing legal boundaries, the situation sets the stage for a fraught showdown.
The decision before the administration is a stark one. It could take the loss and do what it can to bring back Abrego García, potentially undermining its claims that this wasn’t possible. Or it could stick to its guns in saying that it can’t get him back, in ways that could certainly strain credulity.
While many have summarized the decision as the Supreme Court ordering the administration to return Abrego García, it’s not quite so simple.
The justices agreed that the lower-court order’s properly required the administration to “facilitate” Abrego García’s return. But that’s not the same as saying the administration must ensure his return, full stop.
Indeed, the Supreme Court’s order takes care to implicitly acknowledge the potential difficulties involved in ensuring his return. The justices clearly did not want to overstep into dictating the administration’s foreign policy actions — a constitutional line that courts are often loath to cross.
The lower-court judge’s ruling stated that the administration must not just “facilitate” Abrego García’s return but also “effectuate” it. The Supreme Court asked the judge the clarify what she meant by “effectuate” — a more demanding requirement.
The lower-court judge, U.S. District Judge Paula Xinis, then amended her order to strike the term “effectuate” and has ordered the administration to quickly lay out its steps for facilitating Abrego García’s return.
The Justice Department was ordered to respond by 9:30 a.m. Friday. But it blew past that deadline and, in a later hearing, declined to provide the information the judge sought, calling her timelines “impracticable.”
The administration, meanwhile, has also suggested it might try to hold a hard line, pointing to Trump’s foreign policy authority and El Salvador’s sovereignty.
Stephen Miller, a key Trump adviser and deputy chief of staff, claimed on X that the Supreme Court had “made clear that a district court judge cannot exercise Article II foreign affairs powers.” He suggestively added that Abrego García is under the “control of a sovereign foreign nation.”
The Justice Department said in a statement that “this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.”
In fact, the justices made clear that they can and will serve as at least something of a check on Trump’s efforts to exercise those powers, specifically when the administration does so illegally.
The big question is whether the administration truly goes to bat for Abrego García’s return. Despite its earlier contention that it can’t do this and that El Salvador is a “sovereign foreign nation,” that nation happens to be one with which the administration effectively contracted to take migrants like Abrego García. If the administration could cut a deal with El Salvador to take the migrants, judges and justices might very logically assume, why can’t it cut a deal to get one of them returned when the highest U.S. court says that’s what should happen?
“Are we really to believe that the ‘Art of the Deal’ president has struck a deal with El Salvador that prevents him from obtaining the return of individuals that have been wrongly deported?” conservative legal scholar Ed Whelan wrote Friday in the National Review.
The administration has argued that El Salvador might have its “own legal rationales for detaining” people like Abrego García, who the Trump administration has claimed with little evidence is a member of the MS-13 gang. But Abrego García’s attorney has denied that claim and said it doesn’t make sense, because his client left El Salvador when he was 16 and has no criminal record there.
Salvadoran President Nayib Bukele, meanwhile, has played up his assistance to the Trump administration and even taunted a judge who moved to check Trump’s deportation efforts.
It’s not impossible to see the administration making or at least telegraphing only a token effort to get Abrego García back. It could then throw up its hands, thus challenging the courts — and even the Supreme Court — to take a more significant stand that could test their desire to avoid dictating foreign policy actions.
In many ways, that’s a clash the administration has seemed to crave. Stay tuned.