In the United States the constitutional crisis seems to have intensified overnight, with the US government appearing to flout an injunctive order of the federal court to facilitate a deportee’s return – an order which has been upheld 9-0 by the US supreme court.
The case is that of Kilmar Abrego Garcia (as you can see from that Wiki page, his name has various versions, and this is the version which is preferred on that site, and it is there shortened to Abrego Garcia, which is also how the courts refer to him).
On 15 March 2025 he was unlawfully removed from the United States by the US government and deported to El Salvador.
The removal was unlawful as it was contrary to a court withholding order – and the US government has openly admitted that the removal was a mistake.
Abrego Garcia is now in the notorious Center for Terrorism Confinement (CECOT) in El Salvador, despite him not having any criminal record or other determination against him. He has not even been charged with anything.
On 7 April 2025 a federal court ordered that the US government “facilitate and effectuate” his return.
On 10 April 2025 the US Supreme Court unanimously upheld this order in respect of facilitating his return – though the court also held the term “effectuate” was unclear and required clarification.
*
Pausing at this point, why did the federal court in Marlyand not simply order the US government to return Abrego Garcia?
Why even add the words “facilitate and effectuate”?
Why not just say that the US government is ordered to facilitate and effectuate the return of Abrego Garcia?
*
Here we have to look at what injunctions can and cannot do.
Injunctions are powerful orders of any court.
An injunction typically fixes upon person [x] and if that person does not comply with the order, then [x] is in contempt and can be punished by the court.
The historical roots of the injunction in England go back to the old days of equity where the court, on behalf of the crown, would order that a person act in accordance with their (supposed) conscience – to do what was conscionable.
Of course, like a lot of equity, it was a fiction – those injuncted may or may not have any conscience about doing or not doing something – but that was the legal theory.
It is an order to ensure a person does what the court considers they should be doing.
*
In simple cases, an injunction will be along the lines of [x] should or should not do something.
The assumptions here are that [x] is subject to the jurisdiction of the court and what [x] is being ordered to do (or not do) is within the control of [x].
But sometimes things can get more complicated.
What if [x] is not subject to the jurisdiction of the court?
What if [x] is being ordered to do something outside of their control?
*
Consider the following situation:
[x] is in control of another person [y]
[x] removes [y] from the jurisdiction of the court by deporting [y] to country [z]
[x] no longer has control of [y]
[z] now has control of [y]
*
In this situation the court cannot order [x] to return [y] because [x] no longer has control of [y]. Returning [y] is no longer within the power of [x].
But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.
Therefore the court cannot simply order [x] to return [y].
*
But what happens if [x] has acted unconscionably? Is the court impotent?
Well, the court can order [x] to do what they can to return [y].
In England, for example, a court may order [x] to use their best endeavours to procure the return of [y]. [x] may not be capable of being ordered to return [y] but they can be ordered to do everything they can do.
*
Going back to the Abrego Garcia case, the federal court was no doubt aware that they could not simply order his return.
That is why the court ordered the US government to facilitate his return. The court also ordered the US government to “effectuate” his return, though for many this is a less clear word, though it is not absolutely unclear.
But the word “facilitate” was probably enough – anything covered by the one word would generally be covered by the other.
If the US government, for example, had contractual or other powers to insist to El Salvador that Abrego Garcia be returned, then that should be done.
The fact that he is outside the jurisdiction of the federal court does not mean the US government can now just shrug and not do anything.
The US government is required to do what they can.
And by further order of the court, the US government is now also required to give progress reports on what they are (not) doing to facilitate the return of Abrego Garcia.
*
The US government does not want to do this.
As reported overnight by Aaron Reichlin-Melnick:
*
It would appear from the news reports that the US government is not taking the court orders in this case seriously – that they are flatly refusing to facilitate the return of Abrego Garcia.
The US government submission is here.
You will see they are not saying that they are breaching the order – but one would expect that.
You will see that they are quibbling about what the word “facilitate” means.
Formally, at least, the government claims it is not in breach – they say that the order has no application.
The US government also do not seem to be giving the updates required by the court – at least not in any meaningful way.
The impression conveyed is that the US is flouting the order – and that, even if it were within their power to “facilitate” the return of Abrego Garcia that they will not do so.
*
What will happen next?
If the US government is flouting the order, which appears to be the case, then the constitutional crisis in the United States is intensifying.
Perhaps the US government will successfully appeal to the Supreme Court and that court construes the order and the word “facilitate” to mean something other than the ordinary meaning of the order and indeed the word “facilitate”.
Perhaps the court will punish those responsible at the US government for contempt.
Perhaps even Abrego Garcia will be returned.
It is in the nature of a constitutional crisis that one cannot predict the next events to unfold – for if one could predict what will happen next then it would not be a crisis.
Perhaps nothing dramatic will happen at all – and this will be another quiet tug on the fabric of the constitution the effects of which will worsen over time.
But it is hard to see anything good coming of this.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
At the risk of sounding like a fan boy, I do find these posts extremely useful and important, precisely because they focus on practical aspects of law. Where trade policy is concerned, everyone has an opinion, ranging from it’s a stroke of genius to stark imbecility. You can read 20 comments on the subject and feel none the wiser. These legal analyses get to the heart of the matter clearly and concisely, allowing us to see where the real battle is taking place. One feels pretty sombre, reading this article, but also better informed and I will settle for that any day.
I couldn’t agree with you more!
I would be interested to know what sanctions are generally available when an injunction is not complied with due to (claimed) force majeure. Presumably, in cases not necessarily involving governments, the situation must arise when the subject can claim convincingly that it is impossible to obey the court. Does the judge say “Oh well, never mind” or is there some penalty that can be applied in such cases?
If I remember correctly, about the time of the prorogation of Parliament, many were arguing that a concise, written constitution was superior to our more ?organic? approach.
I believe your opinion was that any constitution will work *providing all involved want to behave constitutionally*.
I suspect the validity of your argument is currently being demonstrated daily…..
Would it be open to the US court to order the government to “use their best endeavours” or “take all reasonable steps” to secure the return of Abrego Garcia from El Salvador? And to require the government to outline to the court what actions they have taken (or which actions they have considered and dismissed, and why).
If the government cannot think of things that could be done, the lawyers for Abrego Garcia could suggest some appropriate actions, and the US government either could implement them or explain why they can’t.
It surely cannot be enough for the US government to say “We think there is nothing we can do. So we have done nothing. And you can’t make us do anything. ” Whatever their agreement with El Salvador says, the most basic step would be to ask the Salvadorian authorities: “can we have Abrego Garcia back please”. Have they not even done that simple thing?
There may not yet be a ruling that actions of the US government are in contempt of court, but they certainly seem contemptuous.
Deporting people directly to foreign jails, without due legal process, is an appalling violation of their rights. It’s being done purely on the basis of populism. Just to please the US President’s supporters. I hope the courts prevail, otherwise who knows what will befall these victims.
It is a chilling warning of how easily democracy can collapse when unchecked political power, or power that does not care about judicial limits, is let loose. I suppose Trump would assert this is “the will of the people”, but the US Constitution was designed to prevent such excess. It should be respected.
Does this raise the prospect of Judge Xinis sending an officer of the court to the DOJ in order to apprehend the Director, while the Director of the DOJ puts an armed guard at the entrance? So these two fine men confront each other and the townspeople peer out of their windows to see who’ll draw first?
In the case of the Prussian coup of 1932 (pre-AH so Godwin’s rule doesn’t apply) when the federal government suspended the Prussian parliament, all it took was a relatively junior policeman with a pistol going into the office of Prime Minister Otto Braun and escorting him out of the building. The pistol was not drawn and nobody expected it to be drawn. But in this case Otto Braun’s office door has an armed guard.
Traditionally this kind of situation was resolved by a Texas (or Arizona) Ranger facing down the outlaw (in this case the DOJ) and renowned constitutional scholar Marty Robbins gives us a fine account in Big Iron. (https://www.youtube.com/watch?v=-NuX79Ud8zI)
What, when push comes to shove, can Judge Xinis actually do, if she finds the DOJ in contempt?
If:
Returning [y] is no longer within the power of [x].
But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.
What if country [x] has an extradition treaty with country [z]?
It should not matter how [y] ended up there; [y] is in the custody of [z] and is required to appear before the courts. Can the courts not compel [x] to proceed to extradite [y] to face the courts by virtue of the treaty.
This assumes the grounds of extradition are met but still also depends on [z] agreeing. Should [z] not abide by the treaty, I presume another court would handle that dispute.
Thank you for noting that this is a matter of equity for Abrego-Garcia. At the same time, the court has made it clear that the government not only erred and was unconscionable, but violated the constitutional rights of Abrego-Garcia; Order 21 clearly states that the government violated USC 1231(b)(3)(A) and the court opines in Memo 31 that Abrego-Garcia is entitled not merely to equity but to relief from irreparable harms and also habeas. When placed up against this, Response 65 doesn’t just read as defiant, but petulant and whining; a victory on appeal is suddenly much less likely given that there is both equity to restore and criminality to regret. In particular, it’s clear that the government *could* habeas Abrego-Garcia but doesn’t yet feel sufficiently motivated; the court could help with that without overstepping its bounds.
I think Trump will not comply with any order, injunction, law. For him that would show weakness. He enjoys the power of hurting and in this case in his eyes Abrego Garcia is scum and entitled to nil. Trump will imagine the world falling backwards in admiration at the way he can simply flip another human being into a bin.
I remember when one of my teachers hit a pupil on the top of his head with a book – blatantly illegal – and then said “Woops.” As you said in a previous post, we can see that word as marking the start of this constitutional crisis. The teacher knew that none of us would dare to report what he had just done. “Woops” meant, “I got away with it, didn’t I?”
In the passage quoted by Reichlin-Melnick, the DOJ say that the only tenable and constitutional meaning of “facilitate” in this context is to remove domestic impediments to Abrego Garcia’s return.
I am guessing this is based on the fact that the SCOTUS ruling of the 10th April, upholding the injunction to facilitate his return, states that the government’s own policy does already specify that in certain circumstances the government should facilitate the return of an alien to the USA to continue immigration proceedings, citing U. S. Immigration and Customs Enforcement, Directive 11061.1, Facilitating the Return to the United States of Certain Lawfully Removed Aliens, §2 (Feb. 24, 2012). That document, in turn, contains the following definition:
“Facilitate an Alien’s Return. To engage in activities which allow a lawfully removed alien to travel to the United States (such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted, parole the alien into the United States upon his or her arrival at a U.S. port of entry. Facilitating an alien’s return does not necessarily include funding the alien’s travel via commercial carrier to the United States or making flight arrangements for the alien.”
Common sense says that if it is permissible and sometimes required to send a letter to a commercial airline saying “This person is free to travel to the USA” it is also permissible and in this case required to send a letter to a foreign government saying “When we told you to throw this person into prison we were making a mistake – he’s free to come back.” But at the very least, the DOJ have delayed the process a little longer. Perhaps SCOTUS will clarify the meaning of “facilitate” in this context, and also overcome any scruples about the Constitution that the DOJ might have. I suppose that, if faced with a SCOTUS ruling that is even more specific, written in language that nobody can twist out of, we might finally hear, once again, “Woops.”
Trump’s lackies have just claimed in the latest circus that the 9-0 Supreme Court ruling was in their favour! Have I missed something?
The US government has – and has admitted – unlawfully removing Abrego Garcia to a foreign country by force. How does this differ from criminal kidnapping? What happens if the Supreme Court hands a copy of this file to the relevant prosecutorial authority and requests that it indict everyone involved for (conspiracy to commit) abduction and false imprisonment?
I understand that, as a matter of raw politics, the Supreme Court might be afraid to call for criminal prosecution, but is there any legal reason it can’t do so? Indeed, surely the Supreme Court Justices, as good law-abiding citizens, should feel a moral responsibility to report any crimes which come to their attention.
How about embedding something like this into the order:
« Until such time as the Defendants have acquired the return of Abrego Garcia to the jurisdiction of the US the Defendants shall not remove any other person to El Salvador without the prior approval of this Court confirmed in writing upon application « ?
The wording would need to be a bit more refined than this of course but a point could be made for the whole world to see.