The facts underlying Noem v. Abrego Garcia are shocking, even by the standards of the Trump administration’s treatment of immigrants. The Supreme Court just ruled that the immigrant at the heart of the case get some relief — but that relief is only partial.
In mid-March, Trump’s government deported Kilmar Armando Abrego Garcia to El Salvador, where he is currently detained in a notorious prison supposedly reserved for terrorists. He was deported even though, in 2019, an immigration judge had issued an order explicitly forbidding the government from sending Abrego Garcia to El Salvador because he faced a “clear probability of future persecution” if returned to that nation. This court order is still in effect today.
No one, including Trump’s own lawyers, has tried to justify this decision under the law. The administration claims that Abrego Garcia was deported as the result of an “administrative error.” When a federal judge asked a Justice Department lawyer why the federal government cannot bring him back to this country, that lawyer responded, “The first thing I did was ask my clients that very question. I’ve not received, to date, an answer that I find satisfactory.”
The judge ordered the federal 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.”
And yet Abrego Garcia remains in El Salvador. After the Trump administration asked the Supreme Court to vacate the judge’s order, Chief Justice John Roberts temporarily blocked the requirement that he be returned to give his Court time to consider the case.
On Thursday evening, the full Court lifted that block in what appears to be a 9-0 decision (sometimes, justices disagree with an order but do not make that dissent public). Still, Thursday’s decision does not order Abrego Garcia’s immediate release and return to the United States.
While the Court’s three Democrats all joined an opinion by Justice Sonia Sotomayor indicating that they would have simply left the lower court’s order in place, the full Supreme Court’s order sends the case back down to the lower court for additional proceedings.
The Supreme Court concludes that the lower court’s 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.”
But it adds that the “intended scope of the term ‘effectuate’ in the District Court’s order” — to “facilitate and effectuate his return — “is, however, unclear, and may exceed the District Court’s authority.” The word “facilitate” suggests that the government must take what steps it can to make something happen, while the word “effectuate” suggests that it needs to actually make it happen.
Because the Supreme Court does not elaborate in much detail on this conclusion, it is difficult to know why the Republican justices decided to limit the lower court’s order in this way, but the Trump administration’s brief in this case may offer a hint as to what the Supreme Court means. The administration’s primary argument was that “the United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding.” So it claimed that the lower court’s order was invalid because it is unenforceable.
The Supreme Court’s order does not go that far, but it does suggest that a majority of the justices are open to the possibility that the US government will request Abrego Garcia’s release, that the Salvadorian government says “no,” and that at some point the courts will not be able to push US officials to do more.
That said, the Supreme Court’s order also states that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” So the justices, at the very least, expect a judge to supervise the administration’s behavior and to intervene if they conclude that it is not doing enough to secure Abrego Garcia’s release.
It is likely, in other words, that the Trump administration will still be able to drag its feet in this case while it waits for the lower court to, in the Supreme Court’s words, “clarify its directive.” And there may be more rounds of litigation if the administration does not use all the tools at its disposal to free Abrego Garcia. In the meantime, of course, he is likely to remain in a prison known for its human rights abuses.
Still, it is notable that none of the justices publicly dissented from Thursday’s order. It seems, in other words, that all nine of the justices are willing to concede that, at the very least, the Trump administration must take some steps to correct its behavior when it does something that even its own lawyers cannot defend.
