The Supreme Court Knows Trump Isn’t Listening Anymore

Last week, the Supreme Court issued an unsigned opinion requiring the Trump administration to “facilitate” the return of Kilmar Armando Abrego Garcia, a 29-year-old Maryland man whom immigration officials deported to a Salvadoran megaprison 32 days ago. But the justices pointedly stopped short of requiring the administration to “effectuate” Abrego Garcia’s return, in light of the “deference owed to the Executive Branch in the conduct of foreign affairs.” They did so despite the fact that lawyers for the government have conceded that it had no legal basis to deport Abrego Garcia; in court, they have characterized his disappearance as an “administrative error,” as if shipping a man who has not been accused of a crime to an overseas gulag is the equivalent of neglecting to attach an itemized receipt to an expense report.

As I wrote last week, the Court’s tepid language presented the White House with a howlingly obvious path forward: to politely ask the Salvadoran government, which the U.S. is paying millions of dollars per year, to release Abrego Garcia, and then, when Salvadoran authorities wink, nod, and say no, to smirk and declare the matter resolved.

As it turns out, the Trump administration did not take the Court seriously enough to even go through the motions of “facilitating” Abrego Garcia’s return. “That’s up to El Salvador if they want to return him. That’s not up to us,” said Attorney General Pam Bondi on Monday, during a meeting between Trump and Salvadoran President Nayib Bukele in the Oval Office. Bukele obediently played his role, calling it “preposterous” to suggest that he—again, the President of El Salvador—could somehow intervene on Abrego Garcia’s behalf. “How can I smuggle a terrorist into the United States?” Bukele asked, as if anyone were asking him to personally chauffeur Abrego Garcia to the border. “I don’t have the power to return him to the United States.”

Moments earlier, cameras captured Trump dictating to Bukele the next phase of their respective countries’ working relationship: sending “homegrowns,” too—U.S. citizens—to die in prisons overseas. “You’ve got to build about five more places,” Trump said. Bukele laughed, and promised that his carceral infrastructure would make sufficient “space” for whomever the Trump administration eventually sees fit to disappear.

On Tuesday, Maryland District Court Judge Paula Xinis, who originally ordered the Trump administration to both “facilitate” and “effectuate” Abrego Garcia’s return, held a hearing on its efforts to at least do the first of those two things. After Justice Department lawyers reiterated their position that, as Trump and Bondi and Bukele contend, the government’s hands are tied, she set an expedited two-week discovery schedule to allow Abrego Garcia’s lawyers to gather facts about the White House’s compliance with her order, or lack thereof. “To date, what the record shows is that nothing has been done. Nothing,” she said.

It is of course good that Xinis, who made no attempt to conceal her irritation during the hearing, is unwilling to take the Trump administration at its word, and open to the possibility of holding its lawyers in contempt should they remain uncooperative. (“There will be no tolerance for gamesmanship or grandstanding,” she warned. “Cancel vacations, cancel other appointments.”) But she also sounded wary of the as-yet-undefined limits that the Supreme Court’s distinction between “facilitating” and “effectuating” might place on her power, and reiterated she was not requiring the government to ask Bukele for Abrego Garcia’s return. “I’m not ordering you to do that,” she said. “I don’t know if I’ll ever be there.” 

For several practical reasons, the Trump administration’s flippant dismissal of the Court’s opinion was always the likeliest outcome. First, if the White House brings back Abrego Garcia, he gets to tell hundreds of millions of people about the horrors he saw and experienced in a foreign prison from which no one has ever been released. (Even if he were to remain in detention, his presence in the U.S. would at least allow his lawyers to pass his testimony along to the public.) As Trump’s handling of immigration issues becomes increasingly unpopular—53 percent of Americans do not approve of his mass deportation agenda, according to a recent Quinnipaic poll—the specter of a union worker and father of three recounting his abduction by ICE goons is a public relations disaster the White House cannot countenance.

Second, the Trump administration deported Abrego Garcia as part of its pledge to deport tens of millions of immigrants by any means necessary. But as Chris Geidner points out at Law Dork, this crude people-warehousing partnership with El Salvador is a mission-critical part of the president’s plan, because appealing to Salvadoran sovereignty is how the administration intends to evade judicial review in the myriad wrongful deportations that will inevitably occur. As I wrote last week, if the legal system allows the government to disappear Abrego Garcia by “accident,” it will allow the government to disappear anyone. By the same token, if the government shows that it has the power to retrieve Abrego Garcia, it will show federal judges presiding over other cases that it has the power to retrieve anyone else, too. 

I do not care to spend too much time speculating about the justices’ motivations, in part because they will never tell me the answers, and in part because for Abrego Garcia, it does not matter whether his ongoing presence in a concentration camp is more attributable to the U.S. Supreme Court’s complicity or cowardice. But the justices know how to deal with parties who are dragging their feet; if the Court’s Republican supermajority actually wanted the Trump administration to bring Abrego Garcia home, they know what words to use to make their intent clear. There are only two explanations for their conspicuous failure to do so, and neither is encouraging: Either the justices want to protect Trump’s power to deprive brown people of due process, or were too afraid that his refusal to comply with an order requiring Abrego Garcia’s return would sap them of whatever political power they have left.

Much of the discourse around whether Trump has sparked a constitutional crisis assumes the question has a clear, objective answer—that Donald Trump will someday do a randomly capitalized, typo-ridden Truth Social post telling John Roberts to go to hell, thus flipping the official Is Autocracy Happening Yet switch from NO to YES. In March, after the White House ignored a district court order barring it from shipping several planeloads of detainees to El Salvador, Senate Minority Leader Chuck Schumer took the position that only Trump’s defiance of the Supreme Court would meet the definition of a constitutional crisis, and that in the meantime, the rule of law would remain blessedly safe from harm.

Together, the Court’s handling of Abrego Garcia’s case and the Trump administration’s gleeful feigned helplessness demonstrate that this black-and-white framework was never correct, and only served to obfuscate the extent of Trump’s embrace of autocracy and the judiciary’s meek acquiescence to that project. A better way to think about what it means for this country to be in a constitutional crisis is to think about a pot heating on the stove: Technically, the water will only boil at 212 degrees Fahrenheit, but will still burn you well before it gets that hot.

In their opinion, the justices purported to affirm the government’s obligations to treat Abrego Garcia with the fairness the law requires. But if “compliance” with the terms of a Supreme Court opinion allows the president to flout the Fifth Amendment’s protections, that opinion was never about safeguarding his constitutional rights. It was about laying out a legal process by which the Trump administration could comfortably ignore them.