The Supreme Court's ruling was hardly a win for Kilmar Abrego Garcia

The justices told Trump to try to bring him back — but rebuked the lower court for ordering him to actually get it done. So he's not doing it.

Apr 17, 2025

Yesterday, a federal court found probable cause to hold the Trump Administration in criminal contempt of court. In a 46-page ruling, U.S. District Judge Boasberg determined that Trump had failed to comply with his temporary restraining order barring the use of the Alien Enemies Act to send people to a supermax prison in El Salvador with no due process.

Read the first paragraph for yourself:

There’s a lot of discussion going on as to whether what’s going on has to do with Abrego Garcia’s particular immigration posture. This is someone who entered the country illegally but was declared not removable to El Salvador by a judge in 2019.

But those details are beside the point. The point is that Trump violated a federal court order. He violated the Constitution’s due process clause. These facts are not in dispute.

That puts him above the law.

If Trump is allowed to get away with this, he then becomes the law in the United States. Individual rights become arbitrary, subject to the whims of the rule. That holds for all of us — citizen and non-citizen alike. He gets to decide your fate, too. If he doesn’t want you around anymore, you go — and no judge can stop him. That’s the idea here. It’s gravely serious.

The judge gave the administration until April 23rd to either prove that the government did not violate the order, or, in the alternative, name the person in the government who chose to continue the deportations and let those planes take off. He also floated the idea of naming a private lawyer to act as a prosecutor in this matter, knowing that DOJ under Pam Bondi can’t be trusted to enforce the law against itself.

I spoke about this on ABC News yesterday.

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El Salvador’s President, Nayib Bukele, met with Trump on April 14 in the Oval Office. Both Bukele and Trump told reporters that they had no power to bring Abrego Garcia back. This cynical argument is, of course, absurd. Bukele has custody of Abrego Garcia and could tell his guards to release him. He could have even brought him on the plane with him to Washington. The Trump Administration could send its own plane, and if Bukele refused to release him, stop the $6 million payment Trump is making for keeping these men illegally. The double-talk is all a disgusting game. Except that human lives are being destroyed. Trump also said that “homegrown” are next.

Senator Chris Van Hollen (D-Md) got on a plane yesterday morning and flew to El Salvador to check on his constituent, Kilmar Armando Abrego Garcia, whom the Trump administration had admittedly deported in error to El Salvador’s Terrorism Confinement Center, where inmates’ heads are shaved and they are kept in “communal cells” for 23.5 hours a day with up to 100 other inmates. Bukele would not meet with Van Hollen and he was denied access to Abrego Garcia.

In a press conference on Wednesday, Attorney General Pam Bondi bluntly said, “He’s not coming back.”

How is this even possible? Didn’t the Supreme Court say that Abrego Garcia needs to come home?

Not exactly. The Supreme Court is partially to blame for this terrifying human rights nightmare.

Because, as I wrote in my recent article for The Hill, when the Supreme Court upheld the order of Judge Xinis (the district judge handling Abrego Garcia’s specific case), it created a major loophole for Trump that he’s taken full advantage of.

Note to everyone: Supreme Court rulings involving Trump need to be read and unpacked VERY carefully. The press often just runs with the headlines — here, that the Supreme Court ordered Abrego Garcia’s release — when in fact they handed Trump a mini-victory. The same thing happened last summer with the Court’s criminal immunity ruling. People took the bait and reported that “unofficial” acts can still be prosecuted as crimes, as if there was still the possibility of accountability for Trump. But the distinction between unofficial and official acts was silly. It was a decoy. It’s the misuse of official power that produces abuses like what’s happening with the deportations to El Salvador. The Court knew this, but pretended it was finding middle ground.

I will always tell you the real deal here.

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A quick recap of Abrego Garcia’s case:

As I explained on Monday, Abrego Garcia has never been charged with a crime. But on March 12th of this year, he was pulled over by ICE officers and falsely told his immigration status ha[d] changed.” Within minutes, he was handcuffed, and his wife had ten minutes to come pick up their five-year-old son, who has nonverbal autism, and was still sitting in the car that Abrego Garcia was driving.

But Abrego Garcia’s status had not been changed. In 2019, a judge had granted Abrego Garcia withholding of removal, which, as Judge Xinis said in her original order, “prohibited his removal to El Salvador.”

In the order, Judge Xinis also directed the Trump administration to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.”

Judge Xinis ruled that Abrego Garcia’s “continued presence in El Salvador, for obvious reasons, constitutes irreparable harm,” and that the government must “restore him to the status quo,” and “facilitate and effectuate” his return before midnight April 7th.

Chief Justice John Roberts nullified this deadline when he issued an administrative stay last week. However, the Supreme Court still needed to decide whether or not the order should be upheld or vacated.

Before we go on with what the Supreme Court said, let me remind you all of one very important thing. The Trump administration feels as though, despite erroneously deporting Abrego Garcia to El Salvador, they should not have to bring him back because they allege that he is a member of a violent gang, MS—13. But here is the key part: the only evidence that the government has provided to support their allegation that Abrego Garcia is involved in MS-13 is that he “was wearing ‘his Chicago Bulls hat and hoodie,’ and second, ‘a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived,” (emphasis added).

Despite all of this, the Supreme Court still did not feel the need to shout from the rooftops that every single aspect of this is illegal and unconstitutional. Instead, they made things easier for Trump and his administration to avoid bringing Abrego Garcia back home.

What did the Supreme Court say?

The Supreme Court essentially told the Trump administration that they only have to try to have Abrego Garcia released from El Salvador’s custody, not actually make his release happen. Because … foreign policy. Yikes.

Let’s take a closer look at what the unanimous decision said:

“[T]he 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. 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.”

At first glance, this may not seem problematic. But the Supreme Court said two very important things.

1. The Court stated that Trump may not have to “effectuate” Abrego Garcia’s return.

Trump has to “facilitate” the return, which according to Merriam-Webster means to “help bring something about,” (or try). Effecuate, on the other hand, means to “cause or bring about something.” So, as I explained to Michel Martin on NPR’s Morning Edition, the Court is basically telling the lower court to reconsider ordering the government to make sure that Abrego Garcia is actually returned and that it may be sufficient for the administration to effectively “just try.”

If this doesn’t already sound problematic to you, let me clarify: the Supreme Court said that the President of the United States may only have to try to bring someone back to the country after they accidentally deported him to a foreign terrorist center, with no legal basis, because of his discretion over “foreign affairs.”

Not only does this severely decrease the likelihood of Abrego Garcia’s return home, but it also tells the Trump administration that if they accidentally deport someone, they don’t necessarily have to get them back so long as Trump cites “foreign affairs” as an excuse. The Trump administration has zero incentive to make sure any and everyone it deports, going forward, gets constitutional due process.

Once they are on foreign soil, Trump washes his hands of them. He is literally deporting people outside the jurisdiction of the Constitution in order to deprive them of the protections the Constitution provides against his abuses of power.

2. The Court seems to believe that the president’s foreign affairs powers supersede an individual’s right to constitutionally-required due process before being sent to a foreign torture facility.

The Constitution does not mention the president’s “foreign affairs powers” (or immigration powers). But it does specifically guarantee that Abrego Garcia must have notice of the alleged offenses leading to his deportation, and the opportunity to have his case heard before he is stripped of his liberty—all rights that can be found explicitly in the Fifth Amendment.

Article II, which lists president’s powers, states that the president has the “executive Power,” the commander-in-chief authority, and the ability to negotiate treaties and appoint ambassadors and other “public Ministers and counsels” with the advice and consent of the Senate.

Article I mentions foreign nations, naturalization, the power to declare war, and other powers, but those are reserved solely for Congress. Specifically, Article I states that Congress has the power “to regulate Commerce with foreign Nations,” impose taxes and import tariffs “for the common Defence and general Welfare of the United States,” “to establish a uniform Rule of Naturalization,” and to declare war—to name a few.

In the words of James Madison, it is “an absurdity — in practice a tyranny” to pretend that presidential power to make war and peace “appear from any direct position to be found in the instrument” of the actual Constitution.

However, the Supreme Court has since ruled that the president has “plenary and exclusive power…as the sole organ of the federal government in the field of international relations.” This is an implied power that the Supreme Court has decided to give the president; it’s not in the Constitution.

And, given the fact that Trump is paying the president of El Salvador to keep Abrego Garcia and other individuals deported from America in CECOT, there doesn’t seem to be much of a “foreign affairs” issue. Factor in the serious violations of Abrego Garcia’s constitutional rights, and one would have expected the so-called “conservative” Supreme Court justices to refuse to be complicit in obvious abuses of individual rights guaranteed by law.

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote an accompanying statement to the decision that said just that. “To this day,” she stated, “the Government has cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it. … The only argument the government offers in support of its request [is] that United States courts cannot grant relief once a deportee crosses the border,” which “is plainly wrong.”

She added: “That means the government must comply with its obligation to provide Abrego Garcia with ‘due process of law.’”

What has happened since the Supreme Court’s decision?

On Friday, Judge Xinis issued an order finding that the Trump administration “failed to comply” with the “facilitat[ion]” part of the order. So even the watered down version endorsed by the Supreme Court has been violated.

The Trump administration has doubled down on its view that Abrego Garcia should stay in El Salvador, rather than make any sort of effort to bring him home, per the Supreme Court’s order.

Over the weekend, the government bit back at the judge, effectively telling her “too bad.” DOJ lawyers took the words straight from the Supreme Court’s decision: “The relief sought by plaintiffs is inconsistent with the Supreme Court’s instruction requiring this court to respect the president’s Article II authority to manage foreign policy.”

So long as Trump claims foreign policy, he can do whatever he wants. Courts don’t get to ascertain whether there is even any foreign policy issue in play, or whether the people whose rights are being violated did anything wrong, because Trump has suspended due process. And the Supreme Court seems to be basically okay with that.

What “facilitate” refers to, according to Trump, is “domestic obstacles that would otherwise impede [his] ability to return here.” So if Bukele wants to deliver Abrego Garcia to the border, Bondi said the U.S. will provide a plane. But the administration has also suggested that the U.S. would just take him into custody again and swiftly deport him somewhere else.

DHS Assistant Secretary of Public Affairs Tricia McLaughlin told ABC News’s Jay O'Brien on Tuesday that Abrego Garcia “should have been sent to a detention center in Mexico, Nicaragua, Egypt."

In the case before Judge Xinis, the government also told the judge that it will not comply with the part of the order that mandated the production of documents relating to the arrangement with the prison in El Salvador. The government has said it plans to appeal.

On Tuesday, Judge Xinis again ordered that the government produce documents and witnesses to help her determine whether to initiate contempt proceedings (this is what Judge Boasberg did in the other case.)

Oh, and amidst all of this, the administration sent ten more deportees to El Salvador on Saturday.

What’s the takeaway?

The signs of U.S. democracy are becoming increasingly difficult to find.

This should scare every single one of us, regardless of how you feel about immigration.

Perhaps the one silver lining is that people are now waking up to the fact that we are in a constitutional crisis. Unlimited power in one person is not democracy. Pick your favorite word — fascism, autocracy, authoritarianism, dictatorship — we all now know what this means.

This is no time for wishful thinking about the midterms. Get active, get informed, get organized.

And be grateful for the rights we have left.

Follow the facts,