“The facts are messy and complicated but it does appear that the government is, at the very least, slow walking their response to repeated judicial orders,” says Dan Urman, a Northeastern University legal scholar.
The Supreme Court of the United States ruled 9-0 last week that the Trump administration must “facilitate” the return of a Maryland man it says was wrongly deported to El Salvador.
That man, Kilmar Abrego Garcia, was deported on March 15 and sent to what’s been described as a notorious gang prison in the Central American nation.
The Supreme Court granted in part — and denied in part — a petition to have Abrego Garcia returned, noting that a district court’s deadline to return him had passed. But the unsigned opinion did note that the government “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
Has the administration defied the high court order, as some have suggested? What are the next steps?
Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court, says the ruling is anything but straightforward: it appears to give the administration “a little bit of wiggle room” in its next move, while deferring to the executive branch’s foreign affairs power.
“The facts are messy and complicated but it does appear that the government is, at the very least, slow walking their response to repeated judicial orders,” Urman says. “We don’t yet know if this is deliberate defiance being ordered from the top.”
Indeed, both sides declared victory following the Supreme Court’s decision. The Justice Department hailed the order as correctly recognizing the “exclusive prerogative of the president to conduct foreign affairs,” while Abrego Garcia’s attorneys said it unequivocally meant “that the government has to bring Kilmar home.”
But during an Oval Office visit on Monday, El Salvador President Nayib Bukele said he would not initiate a return of Abrego Garcia to the United States.
“The question is preposterous. How can I smuggle a terrorist into the United States?” Bukele told reporters.
A sheet metal worker living in Maryland, Abrego Garcia came to the United States to escape gang violence around 2011, his attorneys say. The administration alleges that he is a member of the MS-13 gang.
A U.S. immigration judge ruled in 2019 that he cannot be deported to El Salvador as part of a withholding order — but could potentially be deported elsewhere. The Trump administration said his removal from the U.S. is the result of an “administrative error.”
With Bukele refusing to return Abrego Garcia, and administration officials noting they cannot effectuate his return now that he is no longer in U.S. custody, the situation appears — to some — a Catch-22.
The matter will again be sent to the lower courts for further clarification — specifically on the issue of what constitutes the foreign affairs power the administration cites in its defense. Invoked in other of the administration’s legal battles, such as its fight to dismantle USAID funding, the nature of the president’s foreign affairs powers has long been the subject of debate.
“The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” the decision reads.
While the court may have bought the administration some time to plot its next move, Urman says it’s only a matter of time before the administration has to act. Whether it does so under the supervision of the district court judge, or again at the urging of the Supreme Court, remains to be seen.
“I think some but not all justices want him returned,” Urman says. “The question is whether that adds up to five.”
Tensions between the judiciary and the administration have ratcheted up in recent days in the wake of a series of legal decisions tied to Trump’s executive orders and immigration actions. Some scholars believe the moment marks a genuine constitutional crisis, a situation in which disagreements between the two branches of government cannot find remedy within the current institutional arrangement.
“Our entire system is based on the parties to a lawsuit complying with judicial orders,” Urman says.
As for Urman, the moment is clearly a crisis, one that doesn’t — on paper — favor the courts, not least because the courts’ enforcement power resides with the executive branch.
“Trump administration actions like this will embolden judges up to and including Supreme Court justices to possibly issue civil and criminal contempt orders,” Urman says. “This ratchets up the constitutional crisis, since the U.S. Marshals or the Department of Justice must enforce contempt orders. Both institutions exist within the executive branch, which allegedly defied the judicial branch.”
For many scholars, the situation is entirely novel.
“What we are seeing is like the opening rounds of a prize fight in which the court and the president are testing each other out,” says Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law.
“It would mark a serious constitutional crisis if nobody enforced a judge’s contempt order,” Urman says.