Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

/110 Comments/in /by

The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. 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.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

Share this entry
110 replies
  2. NEIL P CHASAN says:

    I really don’t k ow how you do it! Thank you so much for all you do.

    [Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment as “NC” triggering auto-moderation; it has been edited to reflect your established username. Please check your browser’s cache and autofill; future comments may not publish if username does not match. /~Rayne]

    Reply
  3. Attygmgm says:

    Mr. Sauer presumably learned much from the Supreme Court’s immunity decision, where the court rejected his position so as to give him far more protection for his client than he had asked for.

    Reply
  4. Trudy Bond says:

    You wrote: “Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.” I’m a bit confused . . . I’m assuming you’re referring to the Fifth Circuit but would not consider them the most likely to sanction constitutional violations.

    Reply
    • BRUCE F COLE says:

      That depends on your use of the word “sanction,” as it can refer to both “permission” and “punishment.” Marcy’s using it in the former sense.

      I want to know why the majority in the JGG order cited Carson v American Brands as precedent for dismissing a normally non-appealable TRO. Carson concerned an injunction (which is appealable), not a TRO. Is it just more deliberate RW obtuseness, or is there something I don’t get (which would be equally likely)?

      Reply
      • Half-assed_steven says:

        Indeed. I went and looked that case up this morning. Beyond the TRO distinction, also notable is the following from that case:

        “Because § 1292 (a) (1) was intended to carve out only a limited exception to the final-judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292 (a) (1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, supra, at 181.”

        The majority yesterday appears to have made no effort to contend with this (or with Sotomayor’s invocation of the clean-hands doctrine, which is presumably part of what they dismissed as “rhetoric”). I conclude that they are not even trying to be intellectually honest.

        Reply
        • BRUCE F COLE says:

          Your last sentence may qualify as the understatement of the year. Intellectual dishonesty is their raison d’etre.

          The best part of the current case was that the count was 5 men against the 4 women…again.

          I like the women’s chances of drawing Roberts to the light (it won’t be long before the word ‘coven’ starts being used in theo-technocrat circles in that regard) and Barret continues to fill the shoes of O’Connor, it seems.

  5. Boycurry says:

    How long can Roberts keep spinning plates with Trump to avoid his (SCOTUS’) own irrelevance? This seems as much a gimmick as to bail the court out.

    Reply
    • P J Evans says:

      He’s made it obvious that he’s in the tank for (and with) The Felon Guy in particular, and the GOP’s right half in general.

      Reply
      • Boycurry says:

        No doubt. But he’s also desperate for Trump not to blow off the courts and SCOTUS’ own legitimacy. It seems to be as much self preservation as anything else. Once that happens it’s game over.

        Reply
    • starling says:

      It seems to be a well established pattern that, when the lower courts start moving toward contempt and sanctions against the gov, SCOTUS steps in and makes sure that gov gets most of what it wants, without establishing the principle that the gov gets what it wants. See Nicholas Parilla “The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power” (https://harvardlawreview.org/print/vol-131/the-endgame-of-administrative-law/)

      In the past, this hasn’t led to autocracy because the administration is mostly acting in good faith. It looks to me as if Roberts is just going to continue this established pattern but with a bad-faith administration. He is going to try to maintain the authority of the courts by avoiding a show-down that the courts lose, and this strategy will ensure that the courts gradually lose relevance and become a rubber-stamp.

      Reply
  7. Liz_08APR2025_1302h says:

    What is the likelihood that essentially sending court reviews to the Fifth Circuit is to provide the opportunity for some of those judges to “tryout” for elevations? Who might that be?

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We adopted this minimum standard to support community security. Because your username is too short and common, your username will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. /~Rayne]

    Reply
  9. harpie says:

    1] https://bsky.app/profile/atrupar.com/post/3lmcn3jgu7v2s
    April 8, 2025 at 9:59 AM

    [4/8/25 8:23 ET] Q: The Judge in DC, Boasberg, there’s a hearing scheduled today. Will that happen? I mean, this is essentially over, will he still try ta use some type of power that he has?

    [0:13] BONDI: There is a hearing scheduled today at three PM. He is not canceling the hearing. He is continuing on with the hearing, but the Supreme Court has spoken [raises voice] loud and clear. He has no jurisdiction. That flight will remain in El Salvador. Those inmates, those violent gang members, those violent alien enemies will remain in El Salvador. He cannot get them back. So, his jurisdiction is over. So, we’ll see what he says today at three PM, but going forward, these terrorists better look out.

    2] https://bsky.app/profile/atrupar.com/post/3lmcxx2gf2f2n
    April 8, 2025 at 1:13 PM

    LEAVITT [4/8/25 1:09 PM] [reading] On April fourteenth President Trump will welcome President Bukele of El Salvador for an official working visit here at the White House. They will discuss El Salvador’s partnership on using their supermax prison for Tren de Aragua and MS-13 gang members and how El Salvador’s cooperation with the United States has become a model for others to work with this administration.

    Reply
      • harpie says:

        More about that ^^^:
        https://talkingpointsmemo.com/morning-memo/scotus-launches-itself-into-the-worst-of-the-trump-cases
        David Kurtz April 8, 2025 10:24 a.m.

        The Justice Department filed a snotty notice of the Supreme Court’s ruling on the Alien Enemies Act to Judge Boasberg and asked him to end his inquiry into whether the Trump administration violated his order blocking the deportations and should be held in contempt.

        Boasberg’s initial response [link to Cheney post, above] did not tip his hand on the contempt proceedings. The Supreme Court did Boasberg no favors in depriving him of jurisdiction, but that alone should not be enough – in theory – to end the contempt proceeding. […]

        Reply
    • harpie says:

      Moving the goal posts:

      https://bsky.app/profile/annabower.bsky.social/post/3lmduiyro3s2r
      April 8, 2025 at 9:45 PM

      Trump has not issued a proclamation that purports to invoke the Alien Enemies Act against MS-13 or Mexican drug cartels [screenshot of TRUMP Truth[sic]Social post]

      TRUMP: 4/8/25 9:38 PM [TZ?] Last month, we officially designated Tren de Aragua, MS-13 and the Mexican drug cartels as foreign terrorist organizations – and thans to the Supreme Court yesterday…we will continue to deport these monsters under the Alien Enemies Act…

      Reply
    • Ginevra diBenci says:

      Bukele’s 14 April visit would be the perfect time to remind him that the US has a *contract* with El Salvador in which we pay them to mistreat our prisoners, and that due to the existence of such *contract* we have leverage that allows us to request/demand the return of Abrego Garcia.

      Because what are *contracts* for if not leverage, President Arty Deal?

      Reply
  10. P J Evans says:

    I hold this entire maladministration, including SCCOTUS, but not the judges like Boasberg and Xinis, in contempt.

    Reply
  12. OldTulsaDude says:

    Trump’s one superpower is the ability to get people to not only say out loud but also to publicly embrace the silent parts. Could it be we are mistaken by thinking the Roberts’ Court still cares about posterity, that this SCOTUS will act at least semi-rationally?

    Reply
    • P J Evans says:

      Roberts, Gorsuch, Beer Kav, Alito, and Thomas are betting that they’ll never have to account for their illegal activities (perjurers, all of them) and their questionable decisions.

      Reply
    • Zinsky123 says:

      I would put a finer point on it and say that Trump’s most formidable ability is his propensity to get his followers to humiliate themselves for him. Look at Lil’ Marco Rubio or Rudy Giuliani, both of whom have utterly disgraced themselves in order to grovel at his wingtips. It is beyond repulsive.

      Reply
  13. dael Escher says:

    Don’t know what curtain these guys think they’re hiding behind but it’s laughable that they’re getting away with it.. not.
    Maybe we should ask their wives. How come people on the homefront have to deal with all this upside down government business? It definitely puts stress in the family relationship which we don’t really need.

    Reply
    • harpie says:

      Immigration Judge Jamee Coman’s in Jena LA:
      “[DHS] either can provide sufficient evidence or not” []
      “If he’s not removable, I’m going to terminate this case on Friday.”

      DHS lawyer: “We have evidence we will submit.”

      Khalil’s immigration lawyer, Mark Van Der Hout:
      [We] requested DHS’s evidence of the allegations more than two weeks ago and ha[ve] not received a response.
      “We cannot plead until we know the specific allegations.”

      Guardian: The DHS also alleges that Khalil failed to disclose on his visa application that he had previously worked in a Syrian office of the British embassy and for the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), before becoming a member of a pro-Palestinian activist group at Columbia.

      [harpie: I DON’T believe them ^]

      Reply
        • harpie says:

          I guess it would be the “failed to disclose” part…

          But can they prove ANY of it?
          Can they convince anyone that the alleged failure was in any way material?
          Why has it taken so long for them to provide evidence?
          What have they retconned in the meantime?

    • harpie says:

      Calling out TRUMP administration’s attempted RetCon:

      […] 3. First, the Government asserts in its Reply (at 5)
      for the first time [italics original] that the Office of the Solicitor General “has been informed” that El Salvador has its “own legal rationales for detaining members of criminal associations and foreign terrorist groups like MS-13.” [< harpie: This is SUCH BS]

      4. Second, the Government’s Reply contends that certain of the
      representations made by its attorney before the district court “do not reflect the position of the United States.” (Reply at 5).

      5. Raising such new factual allegations for the first time in a reply brief is improper and requires a response. […]

      Reply
      • earlofhuntingdon says:

        The govt is not saying what was said in the courts below was untrue, only that what was said by its attorneys did not reflect its current position.

        Reply
    • harpie says:

      End of the Malor THREAD [emphasis added]:

      A decision from SCOTUS about whether Abrego
      should be returned to the U.S. could come at any time.

      The timing is entirely up to SCOTUS.

      Reply
  16. harpie says:

    https://bsky.app/profile/mjsdc.bsky.social/post/3lmiljdu2is2v
    April 10, 2025 at 6:47 PM

    NEW: The Supreme Court directs the Trump administration to “facilitate” the return of Kilmar Abrego Garcia from a prison in El Salvador, where he was sent due to an “administrative error.” It also somewhat narrows the district court’s order.

    No noted dissents.

    The Supreme Court says the district court must show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” when attempting to bring Abrego Garcia back from El Salvador. But the court also makes it very clear that the government must attempt to bring him home.

    In a sharp concurrence, Sotomayor—joined by Kagan and Jackson—condemns the Trump administration’s “egregious error” and spells out the steps that, in her view, the government must now take to afford Abrego Garcia the due process he was denied earlier. [screenshots] [THREAD]

    Leah Litman responds:

    https://bsky.app/profile/leahlitman.bsky.social/post/3lmimvyz7gs2u
    April 10, 2025 at 7:12 PM

    I worry this ruling will get SCOTUS headlines like “SCOTUS STANDS UP TO TRUMP!” But unless and until they ensure that the admin will make meaningful efforts – and really interrogate claims that admin can’t make it happen – I think people need to stay focused on this, demand return, & apply pressure [THREAD]

    Reply
    • harpie says:

      https://bsky.app/profile/gabrielmalor.bsky.social/post/3lmilyk4eg22b
      April 10, 2025 at 6:55 PM

      SCOTUS holds that the district court “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.” [link][screenshot]

      BUT

      So now we’re going to have weeks of “i DoNt KnoW wHaTtt EFFUCKTUATE mEaNsssss….”

      This order leaves a lot of wiggle room for fuckery from this administration, and you know they’re going to push that to the extreme limit and a few inches further just to demonstrate what shits they are. [THREAD]

      Reply
    • P J Evans says:

      I think this maladministration responds to looking like idjits a lot faster than it responds to anything else except praise – and praise is not what it deserves.

      Reply
    • harpie says:

      This THREAD by Cornell constitutional law professor Michael Dorf
      was Reposted by Aaron Reichlin-Melnik:

      https://bsky.app/profile/dorfonlaw.bsky.social/post/3lmiqrcgxkk2p
      April 10, 2025 at 8:22 PM

      [THREAD] I’m seeing a lot of criticism of the SCOTUS order in the Abrego Garcia case. Why, people ask, does the Court suggest that the district court may have exceeded its authority? I don’t like the prospect of further delay, but I think the Court’s order gets it about right. Let me explain. [THREAD]

      The key now, in my view, is to leverage Pres. Trump’s claims that he follows court orders–dubious in some of the funding cases but heretofore true in SCOTUS cases–along with another factor: Trump hates to look weak. […]

      Reply
    • harpie says:

      Later yesterday evening, XINIS order responds to SCOTUS:

      https://bsky.app/profile/chrisgeidner.bsky.social/post/3lmiyoistok2h
      April 10, 2025 at 10:42 PM [emphasis added]

      BREAKING: Judge Paula Xinis issues an order following tonight’s Supreme Court ruling, ordering the government to
      “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” [1/2]

      Background at Law Dork: [LINK]

      Xinis also orders DOJ to file a declaration by 9:30a Friday detailing where Abrego Garcia is and what steps have been and will be taken to facilitate his return. [< One hour from now…we'll see…]

      Finally, she also has scheduled a status conference for 1p Friday.

      Order: [LINK]

      Reply
      • harpie says:

        Earlier, Michael Dorf [above]:

        The key now, in my view, is to leverage Pres. Trump’s claims that he follows court orders–dubious in some of the funding cases but heretofore true in SCOTUS cases–along with another factor: Trump hates to look weak. […]

        And Steve Vladeck [below]:

        The problem with this ruling is the presumption of regularity. In any other administration, a remand with instructions to facilitate Abrego Garcia’s return would lead to honest representations about what is—and isn’t—possible.

        In this administration, there’s no reason to expect straight answers.

        Reply
    • harpie says:

      [This follows on from a comment that’s in the pokey]

      What Happens When Courts Can’t Trust the Executive Branch?
      In the lower courts, the presumption of regularity is in free fall—if it hasn’t crashed already. https://www.lawfaremedia.org/article/what-happens-when-courts-can-t-trust-the-executive-branch Alan Z. Rozenshtein Thursday, April 10, 2025, 10:21 AM

      […] The answer is nothing good. The Reuveni scandal is only the latest sign that, at least in the lower courts, a core principle guiding the relationship between the judicial and executive branches—the presumption of regularity, the courts’ baseline assumption that government officials act lawfully and in good faith—is in free fall. The reason is not that the courts are abandoning the principle; rather, the government’s own conduct is making it impossible for courts to trust that the government is operating honestly. […]

      See also Steve Vladeck [below]

      The problem with this ruling is the presumption of regularity. In any other administration, a remand with instructions to facilitate Abrego Garcia’s return would lead to honest representations about what is—and isn’t—possible.

      In this administration, there’s no reason to expect straight answers.

      Reply
      • Rayne says:

        No idea why that comment went into the pokey, either.

        Unless the site choked on the idea that our country is screwed because Trump doesn’t like to look weak (from his own toxic internal perception, based on who knows what trash he’s acquired over his lifetime combined with poison in his ear from courtiers like Stephen Miller).

        Reply
        • harpie says:

          LOL! Thanks, Rayne!

          adder…I’ve been wondering…I’ve been gathering a lot of GIFT links to various articles from other people on Bluesky…do you and Marcy have any interest in me posting a list of those?

          [harpie: I think if they’re pertinent to the post and the threads you’re building, I don’t see why not. /~Rayne]

        • Ginevra diBenci says:

          Stephen Miller isn’t a courtier–if only that’s all he was. He runs the country now, having rocketed past “my new Roy Cohn” territory since January 20. He lets Trump play out his terrorist fantasies, golf, and engage in market manipulation of the ham-handed sort, but in terms of real policy Miller is steering the ship.

        • harpie says:

          […] But the post that follows suggests that the deeper problem is that many (if not most) of us just don’t trust the Trump administration to behave on remand—which necessarily colors our view of the significance (and scope) of the wiggle room that last night’s ruling creates even as it unanimously rejected the broadest and most alarming claim put forth by the government. To tie this to a legal concept, the problem here is the “presumption of regularity”—and how little the current Justice Department ought to be entitled to it. […]

    • harpie says:

      Laugh Out FVCKING Loud

      https://bsky.app/profile/joshuajfriedman.com/post/3lmk4ovpj3k2b
      April 11, 2025 at 9:27 AM [Kyle Cheney posted about it at 9:20 AM.]

      NEW: The Trump admin tells Judge Xinis that her order last night demanding a status report on Abrego Garcia by 9:30 a.m. and a hearing at 1 p.m. is unreasonable.

      “Due regard for the deference owed to the Executive Branch” requires a delay till next Tue/Wed [Link][screenshot][THREAD]

      Reply
      • harpie says:

        What a bunch of WHINY ASS CRY BABIES. [Signed by Roth, Ensign, Pryby.]

        […] The initial deadline contained in the Amended Preliminary Injunction, which requires Defendants to provide the Court with a plan for diplomatic engagement a mere 30 minutes into the business day following the Supreme Court’s decision last night, is inconsistent with the Supreme Court’s instruction that this Court “clarify its directive[] with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Id. at 2 (emphasis added). That deference requires that the Executive be given a meaningful opportunity to review the Supreme Court’s decision before it is ordered to report what steps it will take in response to that decision. […]

        Reply
      • harpie says:

        https://bsky.app/profile/joshuajfriedman.com/post/3lmkaww67zs2r
        April 11, 2025 at 10:43 AM

        NEW: Judge Xinis gives the government until *11:30 a.m.* to gives a status report on Abrego Garcia. Hearing remains at 1 p.m. [Link]

        From XINIS Order:

        […] The Court largely rejects the Defendants’ request.

        First, the Defendants’ act of sending Abrego Garcia to El Salvador was wholly illegal from the moment it happened, and Defendants have been on notice of the same. […]

        As the Supreme Court plainly stated, “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps,” Slip Op. at 2—all against the backdrop of this Court’s needing to “ensure that the Government lives up to its obligations to follow the law.” Id. at 4 (Sotomayor, J., concurring). […]

        Reply
        • harpie says:

          The following, from the quoted section above, is bolded in the Order:

          […] what it can concerning the steps it has taken […]

        • harpie says:

          Continuation from above AR-M THREAD:

          As others have noted, it’s possible they filed something sealed that’s not showing on the docket.
          But it has been 30 minutes now

        • harpie says:

          https://bsky.app/profile/chrisgeidner.bsky.social/post/3lmkfhzz32c2w
          April 11, 2025 at 12:04 PM

          Non-update: We are now past noon with no responsive filing from DOJ.

          The *only* possibility here that I can think of — beyond outright ignoring the deadline — is that DOJ submitted something to chambers directly. There would still be issues and questions there, but, that’s all I can think of.

          What are the odds of DOJ just blowing off the Judge?
          I think we have to begin with a Presumption of Irregularity.

        • harpie says:

          https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lmkgf43oek22
          April 11, 2025 at 12:20 PM

          Update: They filed 45 minutes late and their response can be boiled down to “We won’t tell you jack at this time, judge.”

          The 1:00 hearing is going to be fiery. Sadly, no public call-in line. [Link][screenshot][THREAD]

          https[:]//bsky[.]app/profile/gabrielmalor.bsky[.]social/post/3lmkgly3omb2f
          April 11, 2025 at 12:24 PM

          Whalp. Here is *a* filing, although it is not *the* filing.

          Gov’t says it “require[s]” an opportunity to brief these issues before complying. (This is not how it works.) [THREAD]

          Note that this gov’t filing in Kilmar Abrego’s case is self-contradictory. One of Judge Xinis’ questions was the current custody status of Abrego.

          This filing says both that he is “in the custody of a foreign sovereign” and that they cannot share “any information requested by the Court.”

          False.

          So it’s simply not true that they cannot answer *any* of her questions. And there is no precedent saying they must be given time to brief the issue of what “facilitate” and “effectuate” means before answering basic factual questions. (Note: the judge’s latest order deleted “effectuate” anyway.)

    • harpie says:

      More good info from Chris Geidner:

      https://bsky.app/profile/chrisgeidner.bsky.social/post/3lmk5fqc2ek2n
      April 11, 2025 at 9:40 AM [emphasis added]

      Last night, SCOTUS upheld most of the order in Kilmar Abrego Garcia’s case, including that the Trump administration “facilitate” his return. Judge Paula Xinis followed up quickly, setting multiple steps — a government declaration and a hearing — for today.

      My report at Law Dork: [link]
      […]
      10:19 AM Further update: That motion from DOJ I’ve been discussing was not accepted for filing because it was filed by someone whose name is not on the filing and the attorneys on the filing have not been admitted to practice in Maryland fed courts or been allowed to do so in this case. (Corrected.) [screenshot]

      The document — requesting an extension — was refiled, a little less than an hour *after* the initial deadline. This time, the person who filed it is on the document.
      At the same time, Kilmar Abrego Garcia’s lawyers have already responded, calling this morning’s actions by the government “another stunning display of arrogance and cruelty.” They “vigorously oppose” the extension request and will be at the 1p hearing. [Link] […]

      Reply
      • harpie says:

        From Abrego Garcia’s response:

        […] This Court’s order to facilitate Abrego Garcia’s return was issued one week ago. It was not stayed until Monday afternoon. Accordingly, the Government should have been taking actions Friday, Saturday, Sunday, and Monday morning, and the Government can report on those. The Supreme Court lifted the stay yesterday evening. Accordingly, the Government should have been taking actions last night and this morning, and it can report on those. The Government should likewise be in a position to tell the Court in general terms what its further plan is to facilitate Mr. Abrego Garcia’s return, and who in the Government is responsible for implementing that plan.

        Instead, the Government continues to delay, obfuscate, and flout court orders, while a man’s life and safety is at risk. […]

        Reply
  17. harpie says:

    I have a post in moderation. This is a continuation of that.

    https://bsky.app/profile/stevevladeck.bsky.social/post/3lmimuvzdis27
    April 10, 2025 at 7:11 PM

    #BREAKING: Supreme Court holds that Trump administration must attempt to “facilitate” the return of Wilmer Armando Abrego García from El Salvador, but remands to the district court to sort out exactly what the administration can and must do going forward: [link]

    In other words, federal courts can order the government to do what it *can,* but can’t compel it to do things that it might not be able to.

    So now the question is what the government tells the district court about what it can and can’t do with respect to obtaining Abrego García’s release.

    The problem with this ruling is the presumption of regularity. In any other administration, a remand with instructions to facilitate Abrego Garcia’s return would lead to honest representations about what is—and isn’t—possible.

    In this administration, there’s no reason to expect straight answers.

    Reply
  19. harpie says:

    RAYNE, HELP!
    I’m sorry if I’m messing things up here…according to the side bar, you’ve posted a comment here recently, but it does not show up. Also, I have another comment in moderation after I thought it had been published. And as always, THANKS for all the work you’re doing.

    [LOL no worries, I think this is what happens when we make changes/publish at the same time. I’ll delete this comment within te half hour. /~Rayne]

    Reply
  20. harpie says:

    [Bringing all this down here.]

    In the Abrego Garcia case,
    the Government assumes it is ENTITLED to a Presumption of Regularity…

    https://bsky.app/profile/bradheath.bsky.social/post/3lmkh3hfpss2t
    April 11, 2025 at 12:33 PM

    Normally the government goes well out of its way to avoid antagonizing judges — even when it can’t or won’t do what it’s been told. But the Justice Department is cranking the dial to 11 on this case in basically every way possible.

    Reply
    • harpie says:

      Steve Vladeck responding to ^:

      https://bsky.app/profile/stevevladeck.bsky.social/post/3lmkhp5m4z22m
      April 11, 2025 at 12:44 PM

      Indeed, this is *exactly* what’s wrong with last night’s #SCOTUS ruling, as I wrote about in this morning’s newsletter:

      [link]

      Everyone saw this coming. And yet the Court did what it did anyway.

      Links to:
      141. Abrego Garcia and the Presumption of Regularity How one reads Thursday’s ruling ordering the federal government to “facilitate” Abrego Garcia’s return depends upon how much (or how little) one expects *this* administration to turn square corners. https://www.stevevladeck.com/p/141-abrego-garcia-and-the-presumption Steve Vladeck 4/11/25

      But the post that follows suggests that the deeper problem is that many (if not most) of us just don’t trust the Trump administration to behave on remand—which necessarily colors our view of the significance (and scope) of the wiggle room that last night’s ruling creates even as it unanimously rejected the broadest and most alarming claim put forth by the government. To tie this to a legal concept, the problem here is the “presumption of regularity”—and how little the current Justice Department ought to be entitled to it. […][italics original]

      I wonder how much Presumption of Regularity
      the current SCOTUS ought to be entitled to.

      Reply
    • harpie says:

      [I’m quoting from a Vladeck article that’s linked in
      a comment of mine that’s currently in the pokey]

      […] To tie this to a legal concept, the problem here is the “presumption of regularity”—and how little the current Justice Department ought to be entitled to it.
      […]
      In any other administration, we could have at least some confidence that the government would tell the truth when put to its paces.
      […]
      But what if they’re not? […]

      As I said in the previous comment:

      I would like to know how much Presumption of Regularity
      the current SCOTUS ought to be entitled to.

      Reply
  21. harpie says:

    WOW Anna Bower is at the Hearing!

    https://bsky.app/profile/annabower.bsky.social/post/3lmkikc4ii22j
    April 11, 2025 at 12:59 PM

    HAPPENING NOW: Following the Supreme Court’s decision requiring the government to “facilitate” the release of Abrego Garcia, a hearing before Judge Paula Xinis is about to begin.

    I’m in Greenbelt, Maryland for @lawfare.bsky.social

    Follow along for updates
    […]
    1:02 PM Judge Xinis: Contrary to what the government put in its briefing, there is no need for further briefing. Now I need to know if the defendants are willing to answer my three questions I’ve asked…wanna go one by one

    Let’s start with number one. Why did defendants not comply with order and give me someone with personal knowledge about Mr. Abrego Garcia’s current location/status?

    Ensign: We’ve said what we can say….

    Judge: What info do you have?

    Ensign: I do not have that info

    So the government is going on record saying no info on his whereabouts?

    Ensign: I’m saying I don’t have that info as an officer of the court, clients have not provided that info to me as of today,,,

    Xinis: It’s quite basic information. I’m asking a very simple question: Where is he?

    Xinis: Filing about an hour ago talks about prospective info. You’re saying you haven’t had time to think of next steps. but this question isn’t about prospective next steps. I’m asking simply: WHERE IS HE?

    Ensign repeats that he doesn’t have that info. […]

    WOW!

    Reply
    • harpie says:

      [Continuing directly]
      1:07 PM Ensign: Plaintiffs have said he was let known to be in El Salvador, government hasn’t submitted evidence to contradict that

      Judge: So there’s no evidence where he is today, that’s extremely troubling

      Judge moves on to next question: What steps has the government taken thus far to facilitate return? Notes there was a period of several days in which her order to return him was in effect. What have the defendants done?

      Ensign: Not prepared to share that info, still evaluating what can share

      Xinis: Ok, so they’ve done nothing? This is a yes or no question. This is a direct question that is yes or no. I’m not asking what yet…just WAS THERE anything done to facilitate return?

      Ensign: I’m unable to answer, don’t have knowledge of that

      Judge: Communicate this to your client: If they don’t communicate any evidence to you as their representative that you can communicate to the court, then there is no evidence.

      Easy way to combat that is to communicate what they’ve done to you. And if they can’t, they need to put that in writing.

      Judge to Ensign: That you don’t know suggests you don’t have a full and effective relationship with your client. So can you explain why you don’t have personal knowledge?

      Ensign repeats line about needing to evaluate the SCOTUS order…

      Reply
      • P J Evans says:

        If the government isn’t telling its own lawyers what they need to know, than I’m going to presume that they’re doing it intentionally, and that they should be held in criminal contempt, as they were told to have that information ready for the judge.

        Reply
    • harpie says:

      1:12 PM Ensign: We’re actively considering what could be done, this is a case that involves three cabinet departments…

      Xinis: And while you do that, the irreparable harm continues. Is anyone moving with any speed on your end? SCOTUS has spoken — quite clearly.

      Judge Xinis says it’s not unreasonable to ask for this info…Ensign says that the government could have some information/responses by Tuesday, as they requested. Says might involve invocations of privilege, but he doesn’t know.

      Ensign: We disagree fundamentally on the status of the court’s order. SCOTUS said the deadline is no longer effective.

      Xinis: Because the admin stay stayed the order past the deadline. So now you have a new amended order, which makes clear you have to facilitate return.

      Ensign: Due regard for the executive means at a minimum you are required to hear from executive in a written brief before any order could become effective again

      Judge says no, that’s not right, basically. “We’re not gonna slow walk this,” she says. “We’re not re-litigating what SCOTUS put to bed.”

      Ensign: We believe due regard requires our to hear from us before any amended order be issued.

      Judge: I disagree with you.

      Reply
      • david wise says:

        I can’t help it. Every time I read defendant saying “due regard”, I mentally add “[nose-in-the-air-sniff]”.

        Reply
    • harpie says:

      1:18 PM Now plaintiff’s counsel up…

      Says court’s order was sufficiently clear, defendants did not comply, leave the remedy in the discretion of the court.

      “It quite clear…the defendants are playing a game with their own order.”

      Court should order people w/ personal knowledge before court.

      Judge Xinis: What to do with the government saying we can’t do this before Tuesday?

      Plaintiff’s counsel says government has’t provided factual basis for why they can’t provide info/comply with order before that

      Judge: What I’m contemplating is very quick briefing order and order of compliance. Government, she says, just so we’re clear: There are no business hours in this court. And if we need to I’m going to require daily status updates on what if anything the government is doing or not doing.

      Garcia’s counsel says daily status updates would be appropriate and they would respond as needed very quickly to each update.

      Ensign says government intends to comply with SCOTUS order, but court deadlines not practicable

      Judge: Then you can tell the public that every day in status updates

      Judge: I hope you will in good faith comply and we’ll take it from there. But I know I want daily updates until this is resolved. Do you have any alternative suggestions for me, Mr. Ensign?

      Ensign wants a declaration due by Monday close of business, not daily.

      Judge: My order is daily updates

      Judge: I don’t understand why these questions can’t be answered today. But maybe you can answer them for me by 5 pm tomorrow.

      And we’ll go ahead and set a follow up hearing for the day after government files the declaration I previously requested

      Ensign repeats that deadlines are impracticable but that they intend to comply w/ SCOTUS order.

      And that’s it. Hearing over.
      Judge will enter written order in due course.

      WOW.

      Reply
      • P J Evans says:

        Ensign is going to take the heat for the people actually making the decisions, who don’t want to be public at all.

        Reply
    • harpie says:

      Bower, later in the day:
      https://bsky.app/profile/annabower.bsky.social/post/3lmlbtkzzp22j
      April 11, 2025 at 7:54 PM [italics added]

      Asked about the court order to return Kilmar Abrego Garcia from El Salvador, Trump said this tonight, per White House pool:

      “If the Supreme Court said bring somebody back I would do that. I respect the Supreme Court…I have great respect for the Supreme Court.”

      April 11, 2025 at 8:32 PM
      Update: I just listened to the audio of this.

      Trump: “If the Supreme Court said bring somebody back, I would do that. I respect the Supreme Court.”

      Reporter: And the lower court as well…?

      Trump: “Oh no, no. I’m not talking about the lower court. I have great respect for the Supreme Court.”

      Reply
    • harpie says:

      Here is Adam Klasfeld with Xinis’ ORDER:

      https://bsky.app/profile/klasfeldreports.com/post/3lmkugnvmhy24
      April 11, 2025 at 4:32 PM

      NEW from judge in Maryland immigrant Kilmar Abrego Garcia’s case:
      “For the reasons discussed during today’s status conference, the Court finds that the [Trump admin] have failed to comply with this Court’s Order…”
      Next hearing: Tuesday, April 15 at 4 pm [LINK]

      The Trump admin tried to justify blowing past the deadline by saying “foreign affairs cannot operate on judicial timelines.”

      Judge Xinis quickly dispatched that claim in a footnote: “Defendants’ vague reference to “foreign affairs” alone does not justify their lack of compliance.” [screenshot]

      Footnote 1:

      “Defendants’ assertion that “foreign affairs cannot operate on judicial timelines” sorely misses the point. ECF No. 59. All parties appearing before this Court are obligated to comply with court-ordered deadliness unless and until they demonstrate good cause to depart from them. See Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). Defendants’ vague reference to “foreign affairs” alone does not justify their lack of compliance.”

      Reply
  22. harpie says:

    DOJ to Xinis, 4/11/25:
    https://storage.courtlistener.com/recap/gov.uscourts.mdd.578815/gov.uscourts.mdd.578815.59.0_1.pdf

    […] Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.

    Respectfully Submitted […]

    From the HEARING thread:

    Ensign says that the government could have some information/responses by Tuesday [4/15/25], as they requested. Says might involve invocations of privilege, but he doesn’t know.

    White House, 4/8/25

    LEAVITT [4/8/25 1:09 PM] [reading] On April fourteenth [Monday, 4/14/25] President Trump will welcome President Bukele of El Salvador for an official working visit here at the White House. They will discuss El Salvador’s partnership on using their supermax prison for Tren de Aragua and MS-13 gang members and how El Salvador’s cooperation with the United States has become a model for others to work with this administration.

    https://bsky.app/profile/atrupar.com/post/3lmcxx2gf2f2n
    April 8, 2025 at 1:13 PM [VIDEO]

    Monday 4/14/25 BUKELE and TRUMP will discuss “El Salvador’s partnership on using their supermax prison for Tren de Aragua and MS-13 gang members and how El Salvador’s cooperation with the United States has become a model for others to work with this administration.”

    Tuesday 4/15/25 DOJ MIGHT be able to share some info on Albrego Garcia.

    Reply
  24. harpie says:

    Anna Bower: https://bsky.app/profile/annabower.bsky.social/post/3lmmiw2sibk2j

    April 11, 2025 at 1:05 PM
    – So the government is going on record saying no info on his whereabouts?
    – Ensign: I’m saying I don’t have that info as an officer of the court, clients have not provided that info to me as of today,,,
    – Xinis: It’s quite basic information.
    I’m asking a very simple question: Where is he?

    April 11, 2025 at 5:48 PM
    [AB]: When DOJ filed its response to Judge Xinis around 12:15 pm today,
    it said: “Plaintiff is in the custody of a foreign sovereign.”
    – Drew Ensign’s name was on the brief.
    – An hour later, at the hearing, Ensign told the judge that he didn’t have info on Garcia’s whereabouts and custodial status.
    – ??? [screenshots]

    April 12, 2025 at 8:11 AM
    Still not over this
    What u doing, Drew Ensign?????????
    This is the same guy who is in hot water with Judge Boasberg in the JGG case!

    Reply
    • harpie says:

      Julian Sanchez: https://bsky.app/profile/normative.bsky.social/post/3lmkz5zdw522e
      April 11, 2025 at 5:56 PM

      One of the striking things about the Abrego Garcia case is that would be trivially easy for the government to demand his return and give apologists an easy talking point: “Yes, sure, mistakes happen but see, they care about getting it right & doing it legally after all.” But nope.

      Like evil toddlers with guns, they’re stamping their feet and refusing to do the obvious, minimally decent thing—AGAINST THEIR OWN INTERESTS—just to say “No, you can’t make me.”

      I agree this sounds like a no-brainer for TRUMP et al,
      BUT I disagree about the reason they’re not doing
      the “trivially easy thing” despite the good propaganda possibilities…

      Their OTHER reason is more lucrative.

      Reply

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.