The Coming Test of Sanity for the Administration

The writing is on the wall to cut losses in Abrego Garcia case

Jennifer Vasquez Sura, wife of Kilmar Abrego Garcia, a Salvadoran migrant who lived in the U.S. legally with a work permit and was erroneously deported to El Salvador, looks on during a press conference with other family members, supporters and members of the Congressional Hispanic Caucus, in Washington, D.C., U.S., April 9, 2025. REUTERS/Ken Cedeno/File Photo

There is a latent fault line not far below the surface of the unanimous Supreme Court opinion in the case of Kilmar Abrego Garcia, the legal resident whom the Administration sent mistakenly and with no process at all—let alone due process—into a hellhole gulag from which no prisoner has ever emerged.

All 9 justices—joining other federal judges, liberal and conservative, in the lower federal courts—upheld the district court’s decision to order relief. All rejected the Administration’s dangerous arguments that now that they’ve dropped Abrego Garcia into a torture pit, there’s nothing that can be done to bring him back, and certainly nothing that a court could order the Administration to do.

It’s the first important case in memory in which Trump did not pick up his automatic, no-argument-too-outrageous cadre of 2 to 4 justices on the extreme right wing of an extremely conservative court.

And as with other important landmark cases, the unanimity of the opinion, though technically immaterial to the result, exerts a gravitational force going forward in all of the deportation cases, and potentially the many future cases in which the Administration will insist on hands-off treatment by the federal judiciary due to supposed national security overtones.

Next to outright defiance of the courts—the ultimate possibility that hangs over our heads with this shameless Administration—the most likely recipe for falling over the cliff into authoritarianism would be the Court permitting the Administration to exercise unreviewable authority for anything it claims concerns national security.

That’s precisely the stance the Administration took last month when it resisted Judge Jeb Boasberg’s efforts to learn just what the hell was going on as they were rushing two planes of deportees down to El Salvador. What was going on, it looks increasingly likely, was an effort to flout Boasberg’s orders by whisking them away just in time to claim the deportees were not their problem anymore.

EMERGENCY! EMERGENCY!

Since then, court after court has refused to go along with this black-hole theory of Executive Power. The Supreme Court’s per curiam opinion in Trump v. J.G.G. makes clear that the deportees must receive due process, including an opportunity to argue against the Administration’s far-fetched interpretation of the Alien Enemies Act. That bizarre and unprecedented construction holds that some hundreds of miscellaneous gang members in the country constitute a “predatory incursion” by “a foreign country.” Abrego Garcia’s case—the most extreme example of a man whom the Administration admits it deported by mistake—brings that home in a concrete way.

Now to the latent fault line: the tone of the per curiam opinion had a certain blandness and sterility that provoked Justice Sotomayor to file on behalf of herself and Justices Kagan and Jackson a “statement”—not a concurring opinion, not a dissenting opinion, but a statement—giving appropriate attention to the sheer horror of the Administration’s conduct and its nonchalant refusal to correct it.

There’s no comparable dudgeon in the unsigned per curiam. Moreover, there is this critical passage, which Alito et al. would have insisted on:

“The intended scope of the term ‘effectuate’ in the District Court’s order is unclear. The district court should clarify its directive, with due regard for the deference owed to the executive branch in the conduct of foreign affairs.”

If, down the line, the Court were to reverse the stance it took this week, this phrase would be what its determination would hang on.

But there had to be some principle such as this one in the opinion, a counterthrust to the main point of the horrible constitutional violation the Administration has perpetrated. As a general statement, it’s unassailable that when push comes to shove, the courts can’t dictate foreign policy. That’s why Sotomayor’s diatribe was styled a “statement,” not a dissent.

In the case of Abrego Garcia, this phrase sets up proceedings back in the district court before Judge Paula Xinis. The Court has basically armed Xinis to push hard on the Administration, including telling that government that it “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Moreover, in a phrase whose importance has largely been overlooked, the Court made clear that Abrego Garcia’s case must be “handled as it would've been had he not been improperly sent to El Salvador.” That firmly rejects the Administration’s argument that it’s too late to do anything now.

This tug of war between Xinis and the Trump Administration has already begun. This morning, the Trump Administration failed to comply with Xinis’s initial Friday morning deadline to lay out steps for Abrego Garcia’s return. The judge then extended the deadline two hours, which the Administration again claimed they were unable to meet, saying:

“In light of the insufficient amount of time afforded to review the Supreme Court’s Order following the dissolution of the administrative stay in this case, Defendants are not in a position where they ‘can’ share any information requested by the Court.”

The Justice Department lawyers have asked to be allowed until Tuesday to provide the information.

There's a reason for concern that this blustery, arrogant, imprudent, and callous Administration will make little to no effort and come back to the court saying, Sorry, we couldn't do it, although that wasn’t the stance they adopted before Xinis this morning.

Even if they do end up taking that position, that won't be the end of it. Xinis has been given a prospective license to call government officials on the carpet and insist they explain what they've done.

Now, they could attempt to draw a line claiming it’s all state secrets. They tried something like it with Judge Boasberg, but it collapsed with the admission that the information wasn't even classified and the government couldn't produce a single case where state secrets privilege had been upheld for non-classified information. And further, state secrets privilege is normally invoked to shield information from public dissemination, not a judge’s examination in chambers.

Live with Steve Vladeck on the Supreme Court's two recent interventions

And then the biggest point. Everyone will understand that the Administration is lying through its teeth. We made a deal with the devil—i.e. El Salvador’s president Nayib Bukele—to send Tren de Aragua members (and those mistaken as members) and pay him for their brutal incarceration in his country. The notion that it would be near impossible to ask him to send Abrego Garcia back is hard to believe. The Administration will offer up analogies suggesting it would be tantamount to ordering the President to declare war or some other grave foreign policy decision, but courts will be extremely skeptical.

So while it's impossible to prevent the Administration from acting in bad faith, the posture of the case as it stands now is the worst setting for it to draw the line.

On the other hand, it’s a President and an Administration that operate on the rigid principle of never admitting wrongdoing. Nobody can be confident that they will have the judgment to recognize that this is probably the most imprudent and horrific case for intransigence.

But should it adopt that stance, courts, beginning with Judge Xinis, will hold government officials’ feet to the fire—and more importantly, have the maximum likelihood of having their orders backed up by higher courts, including the Supreme Court. It’s hard to imagine a circumstance where Judge Xinis or other district courts simply accept as a fait accompli that the terrible injustice to Abrego Garcia will go unremedied.

Expect also that other courts will pick up on the basic message from the Supreme Court’s two per curiam opinions and be less hesitant about not just reviewing but granting the scores of habeas corpus petitions that the Court has made clear deportees must be able to bring. Here again, the unanimity of the opinion—even as it concealed different shades of approach within the Court—will send a strong message to courts of all stripes.

The Administration is always loath to lose, but if in the unlikely event there is a grown-up or two in the room when Stephen Miller and company argue for giving no quarter, it will recognize that the most politically prudent and, for what it’s worth, fundamentally just decision is to cut their losses and bring Abrego Garcia home.

Talk to you later.