SCOTUS puts constitutional crisis in America's Easter basket

Instead of a chocolate bunny, we get the president openly defying a court order.

(Alex Wong/Getty)

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If Chief Justice John Roberts hoped to save the judiciary by burning it down, he badly miscalculated. Just a week after the Supreme Court’s five male conservatives kicked the legs out from under a respected trial judge to save the Trump administration from the consequences of defying a court order, we are back on the precipice of a disastrous constitutional crisis.

Perhaps the justices aimed to protect the judiciary by swerving to avoid a head-on collision with the executive. Maybe they hoped that President Trump would take the win and trim his dictatorial sails. But this is Dr. Strangelove, not Speed, and no amount of vague harrumphing by the high Court was ever going to persuade Major Kong to stand down.

John Roberts will save the judiciary if he has to burn it down

Thanks to the Supreme Court’s fecklessness, the judiciary is now squarely back on a collision course with a Trump-shaped iceberg. But this time, instead of planeloads of faceless migrants, the case involves just one man: Kilmar Abrego Garcia, a husband and father from Maryland, whom the government deported to a Salvadoran torture prison despite a court order barring just that.

“Turn the planes around”

The first confrontation involved planeloads of migrants deported pursuant to the Alien Enemies Act (AEA), a statute associated with some of the most sordid chapters in American history, including Japanese internment. The law empowers the president to deport foreign citizens in times of war, and so Trump simply declared that Venezuela has invaded the US by dispatching members of the Tren de Aragua gang as shock troops, and began rounding up Venezuelan immigrants more or less at random.

The fact that we are patently not at war didn’t matter to the Supreme Court. Nor did the revelation that 90 percent of the men deported had zero criminal record. In a hastily drafted order, the five conservative justices rebuffed a challenge to the AEA deportations, airily suggesting that anyone fearful of being deported should just file an individual habeas corpus petition … from a detention cell, in the few hours between when they’re informed they’re being moved and when they’re hustled onto a plane and cast into a windowless dungeon with no access to counsel.

John Roberts created a monster. It's about to eat him.

This had the desired effect of heading off a confrontation between Judge James Boasberg and the government, which flatly refused to explain why it deported the men after the judge ordered them not to. But along the way the Supreme Court did require the administration to give some process to AEA deportees.

“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act,” the majority wrote. “The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

Even this appears to have been too big an ask for the Trump administration, which refused to commit to giving AEA deportees even 24 hours notice before shipping them to a Salvadoran gulag.

Abrego Garcia

Kilmar Abrego Garcia was on one of the three deportation flights out of Harlingen, Texas, on March 15, the day Judge Boasberg issued the TRO. But he was not one of the Venezuelan AEA deportees.

Abrego Garcia fled his native El Salvador in 2011 when he was 16, fearful that he would be murdered by members of MS-13. He lived with his US citizen brother in Maryland until 2019, when he was picked up by a local cop and handed over to ICE on suspicion of being a member of MS-13. The cop (who has his own credibility issues) based that claim on nothing more than a Chicago Bulls jersey and a “tip” from a “confidential informant” that Abrego Garcia was a leader of MS-13 in New York — a place he had never lived.

Abrego Garcia was then detained based on the informant’s tip, but eventually a judge determined that he would likely be killed if returned to El Salvador and barred his removal to that country. Since 2019, Abrego Garcia has lived a quiet life with his American wife and children in suburban Maryland, supporting his family as a union sheet metal worker.

Last month, he was picked up by ICE and flown to El Salvador, the one country where it was illegal for the US government to send him. His wife had no idea where he was and only found out when Salvadoran President Nayib Bukele tweeted a music video of the prisoners being shaved and herded like cattle in the notoriously dangerous jail.

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Abrego Garcia’s family sued, and Judge Paula Xinis ordered the Department of Homeland Security to get him back by Monday, April 7. The Supreme Court administratively stayed that order through April 10, when it produced four nebulous paragraphs ordering 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.”

But the Court admonished Judge Xinis to “clarify” her instruction to “effectuate” Abrego Garcia’s return “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Affecting the tone of a harried vice principal called in to settle a teenage squabble, the Court also instructed the government to “share what it can concerning the steps it has taken and the prospect of further steps” to bring Abrego Garcia home.

Blowback

If this admonition was supposed to chasten the administration into claiming victory and bringing this guy home, it failed spectacularly.

First the White House launched an all-out campaign to smear Abrego Garcia.

“This was the right person sent to the right place,” Stephen Miller insisted on Fox, disavowing the sworn testimony of multiple government officials calling the deportation in violation of the court order an accident.

Trump defies judge to dump Venezuelans in Salvadoran slave jail

“This was just one of those examples of an individual that is a MS-13 gang member, multiple charges and encounters with the individuals here, trafficking in his background, was found with other MS-13 gang members — very dangerous person, and what the liberal left and fake news are doing to turn him into a media darling is sickening,” Secretary of Homeland Security Kristi Noem blustered (again) on Fox.

White House Press Secretary Karoline Leavitt repeated that baseless claim from the podium, while crowing that the Supreme Court had unanimously agreed that the government never had to bring Abrego Garcia back.

The Neville Chamberlain strategy

Back before Judge Xinis, the government’s courtroom posture has been similarly defiant. DOJ lawyer Drew Ensign insisted that he could not possibly comment on steps that the government had taken to “facilitate” Abrego Garcia’s return, suggesting that the question violated the separation of powers and “deference owed to the Executive Branch in the conduct of foreign affairs” mandated by the Supreme Court.

The judge ordered daily updates describing:

(1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate his immediate return to the United States; (3) what additional steps Defendants will take, and when, to facilitate his return.

The DOJ’s threadbare responses ignored the second and third questions, curtly asserting that Abrego Garcia “is alive and secure,” and “detained pursuant to the sovereign, domestic authority of El Salvador.”

As evidence of the US government’s inability to secure his return, they linked to a YouTube video of the Oval Office press conference where President Bukele smirked, “How can I smuggle a terrorist into the United States? Of course I’m not going to do it. The question is preposterous.”

The government also un-admitted that it deported Abrego Garcia by mistake. The new line is that he is “no longer eligible for withholding of removal because of his membership in MS-13, which is now a designated foreign terrorist organization.” Essentially, the president claims to have dissolved a judicial order by executive fiat.

But most importantly, the Justice Department seized on the Supreme Court’s weasel words as proof that, while the administration can’t do anything to stop Abrego Garcia from coming home, it has no obligation to affirmatively do anything to make it happen.

Trump’s third term threats are not a distraction

“Reading ‘facilitate’ as requiring something more than domestic measures would not only flout the Supreme Court’s order, but also violate the separation of powers,” they argued.

This position is somewhat undercut by the simultaneous declaration that, if Abrego Garcia magically got himself out of the torture prison we’re paying to hold him in and showed up at the US border, “DHS would take him into custody in the United States and either remove him to a third country or terminate his withholding of removal because of his membership in MS-13, a designated foreign terrorist organization.”

Calm before the storm

At a hearing yesterday, the battle lines sketched out in Judge Boasberg’s DC courtroom were redrawn 13 miles away in Greenbelt, Maryland.

Judge Xinis ordered expedited discovery on what the government has done to “facilitate” Abrego Garcia’s return, including depositions of several DHS officials.

Emboldened by the Supreme Court, the Trump administration has made it clear that it does not intend to comply.

“It was 9-0, in our favor, against the district court ruling, saying no district court has the power to compel the foreign policy function of the United States,” Miller boasted at the Bukele press event on Monday.

And so American democracy is back in exactly the same parlous position as two weeks ago, waiting for the president to provoke a constitutional crisis by openly defying a court order. This is the disaster the Supreme Court tried to avoid by undermining Judge Boasberg, Judge Xinis, and the entire federal judiciary. Only now the administration is more confident than ever that their buddies at SCOTUS will blink and bail them out.

Whatever the chief justice thought he was doing to protect democracy has made the eventual confrontation much more dangerous.

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That’s it for today

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