Late in the day on April 10, the U.S. Supreme Court issued a unanimous opinion relating to an order in the case of Noem v. Abrego Garcia.
This order is noteworthy for several reasons. First, this is yet another of what has become a series of emergency-motion cases resolved without full briefing or oral argument on the so-called “shadow docket.” Second, contrary to what some have argued about that docket in the past, there is nothing that isn’t fully transparent about this opinion rendered on behalf of all the Justices. Third, and most importantly, yesterday's opinion, while brief, might be a significant chapter in what very well may prove a classic separation-of-powers clash between the increasingly unorthodox executive branch and the Supreme Court.
The much-in-the-news Kilmar Armando Abrego Garcia was removed by the United States to El Salvador, where he is currently detained. The government now acknowledges that he had been subject to a withholding order forbidding his removal to El Salvador and that his removal was thus illegal. The government alleges the removal was caused by an “administrative error” but nevertheless argues that he was a member of a gang that had been designated as a foreign terrorist organization. Abrego Garcia denies this, and there is no record of his having engaged in any illegal activities.
The U.S. District Court for the District of Maryland had entered an order directing the government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” That order had been stayed by the Chief Justice, and now the issue of the deadline had become irrelevant. However, in its latest opinion, the Supreme Court says that
[t]he rest of the District Court’s order remains in effect but requires clarification on remand. The 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. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. 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 question, therefore, has become, what must the government do to satisfy the Supreme Court’s mandate concerning the requirement to “facilitate” and “effectuate” Abrego Garcia’s release and, more pointedly, what can the Supreme Court do if the government is less than energetic in satisfying these obligations? Indeed, the point of a concurrence by Justice Sotomayor, joined by Justices Kagan and Jackson, is that the government already has been less than diligent and forthright in the matter so far.
As the Court (likely per the Chief Justice) notes, while the term “facilitate” might be more easily described, “effectuate” is more elusive, and efforts in that regard might conflict with the executive branch’s foreign affairs power. That is what defines the next stage in what might become a separation-of-powers battle. That stage will begin with the district court doing what the Supreme Court has required. But will the government otherwise comply with the facilitation requirement and any further obligation imposed upon it, or will it claim that it is ultimately unable to convince another sovereign to act and that any order of the Court requiring it to deliver exceeds the constitutional authority of the judiciary? That is still to be determined. We’ll keep you posted.
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