The government is not keen to correct its errors. On March 15 the government rendered to prison in El Salvador a legal U.S. resident, Kilmar Armando Abrego Garcia, whom the courts had ordered the U.S. not to send to El Salvador, where his life was in danger. The government has admitted that its arrest and rendition of Abrego Garcia happened because of “administrative error” but now claims—without evidence—that he is a member of the MS-13 gang and that his return to the U.S. would threaten the public. Abrego Garcia says he is not a gang member and notes that he has never been charged with a crime.
On April 4, U.S. District Court Judge Paula Xinis ordered the government to return Abrego Garcia to the U.S. no later than 11:59 pm on April 7. The administration appealed to the Supreme Court, which handed down a 9–0 decision yesterday, saying the government must “facilitate” Abrego Garcia’s release, but asked the district court to clarify what it meant by “effectuate,” noting that it must give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
The Supreme Court also ordered that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
Legal analyst Joyce White Vance explained what happened next. Judge Xinis ordered the government to file an update by 9:30 a.m. today explaining where Abrego Garcia is, what the government is doing to get him back, and what more it will do. She planned an in-person hearing at 1:00 p.m.
The administration made clear it did not intend to comply. It answered that the judge had not given them enough time to answer and suggested that it would delay over the Supreme Court’s instruction that Xinis must show deference to the president’s ability to conduct foreign affairs. Xinis gave the government until 11:30 and said she would still hold the hearing. The government submitted its filing at about 12:15, saying that Abrego Garcia is “in the custody of a foreign sovereign,” but at the 1:00 hearing, as Anna Bower of Lawfare reported, the lawyer representing the government, Drew Ensign, said he did not have information about where Abrego Garcia is and that the government had done nothing to get him back. Ensign said he might have answers by next Tuesday. Xinis says they will have to give an update tomorrow.
As Supreme Court Justice Sonia Sotomayor recently warned, if the administration can take noncitizens off the streets, render them to prison in another country, and then claim it is helpless to correct the error because the person is out of reach of U.S. jurisdiction, it could do the same thing to citizens. Indeed, both President Trump and White House press secretary Karoline Leavitt have proposed that very thing.
Tonight, Trump signed a memorandum to the secretaries of defense, interior, agriculture, and homeland security calling for a “Military Mission for Sealing the Southern Border of the United States and Repelling Invasions.” The memorandum creates a military buffer zone along the border so that any migrant crossing would be trespassing on a U.S. military base. This would allow active-duty soldiers to hold migrants until ICE agents take them.
By April 20, the secretaries of defense and homeland security are supposed to report to the president whether they think he should invoke the 1807 Insurrection Act to enable him to use the military to aid in mass deportations.