Inset: President-elect Donald Trump on “Meet the Press” Sunday, Dec. 8, 2024 (NBC News/YouTube). Background: Immigration records for Kilmar Abrego Garcia (WTTG/YouTube).
With just hours to go before the Trump administration has to return Kilmar Abrego Garcia — a protected Maryland resident who was mistakenly sent to El Salvador as part of President Donald Trump’s deportations of Venezuelan migrants under an 18th-century wartime authority — back to the United States as part of a judge’s order, the Justice Department has tossed up a “Hail Mary” bid to the U.S. Supreme Court, asking it to put the kibosh on the efforts.
“On Friday afternoon, a federal district judge in Maryland ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight,” wrote Solicitor General D. John Sauer in the DOJ’s Supreme Court application to vacate the order.
“This order sets the United States up for failure,” Sauer said.
U.S. District Judge Paula Xinis on Friday granted a preliminary injunction and gave the DOJ just over three days to facilitate bringing Abrego Garcia back to the country, referring to his deportation as “an illegal act” in her order. The 29-year-old was sent to El Salvador on March 15 in error as part of President Trump’s proclamation invoking the Alien Enemies Act of 1798 to rush through mass deportations — which have since been blocked by a federal judge — without providing due process to those being flown out of the country, often not to their country of origin. Abrego Garcia was in the country with protected legal status at the time of his deportation. His wife and 5-year-old child are U.S. citizens. The DOJ admitted to the lower court on Friday that his deportation was an “administrative error,” leading to the suspension of a 15-year DOJ vet who made the public confession.
On Sunday, Xinis issued a 22-page opinion saying she would not back off from forcing the Department of Homeland Security and DHS Secretary Kristi Noem, who are being sued, to return Abrego Garcia to U.S. soil. The DOJ filed an emergency motion to stay Xinis’ preliminary injunction on Saturday with the 4th Circuit Court of Appeals and lower court, “given the urgency of harms to the government,” the DOJ filings said. The 4th Circuit denied the motion on Monday shortly before the DOJ filed its Supreme Court application.
In prior arguments as well as the SCOTUS filing Monday, DOJ lawyers called Xinis’ order “indefensible” and impossible to carry out on account of where he’s being held.
“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,” Sauer said. “The Constitution vests the President with control over foreign negotiations so that the United States speaks with one voice, not so that the President’s central Article II prerogatives can give way to district-court diplomacy. If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business. Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.”
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Xinis, a Barack Obama appointee, dismissed the DOJ’s claim that the Trump administration had its hands tied with Abrego Garcia in her Sunday filing. She said the U.S. can’t prop up the prison in El Salvador as “one of the tools” in the government’s deportation shed — as Xinis said Noem has previously claimed — and then try to act like nothing can be done.
“Surely, Defendants do not mean to suggest that they have wholesale erased the substantive and procedural protections of the INA (Immigration and Nationality Act) in one fell swoop by dropping those individuals in [the prison] without recourse,” Xinis wrote. “Instead, the record reflects that Defendants have ‘outsource[d] part of the [United States’] prison system. Thus, just as in any other contract facility, Defendants can and do maintain the power to secure and transport their detainees, Abrego Garcia included.”
Xinis noted Sunday how the U.S. government and administration officials have repeatedly claimed “without any evidence” that Abrego Garcia is a member of the gang MS-13, which it continued to do on Monday in the Supreme Court application.
“The alien is no ordinary individual, but rather a member of a designated foreign terrorist organization, MS-13, that the government has determined engages in ‘terrorist activity’ or ‘terrorism’ — or ‘retains the capability and intent to engage in terrorist activity or terrorism’ — that ‘threatens the security of United States nationals or the national security of the United States,”” Sauer alleged. “Even amidst a deluge of unlawful injunctions, this order is remarkable. Even respondents did not ask the district court to force the United States to persuade El Salvador to release Abrego Garcia — a native of El Salvador detained in El Salvador — on a judicially mandated clock.”
Even if that were true that Abrego Garcia was an MS-13 member, either former or current, Xinis pointed out Sunday how he was given legal protection to live in the United States because he wanted out of El Salvador due to the threat of retaliation and attacks from MS-13’s “chief rival gang,” identified by Xinis as Barrio 18. She noted how the Trump administration was housing Abrego Garcia with inmates belonging to Barrio 18.
“Abrego Garcia will suffer irreparably were he not accorded his requested relief,” Xinis said. “The risk of harm shocks the conscience. Defendants have forcibly put him in a facility that intentionally mixes rival gang members without any regard for protecting the detainees from harm at the hands of the gangs.”
Lawyers for Abrego Garcia filed an amicus curiae brief with the 4th Circuit on Sunday, showing support from “world-renowned scholars of constitutional law” who say Abrego Garcia’s removal was “extreme” and legally unprecedented.
“Not surprisingly, amici are not aware of any precedent or recognized constitutional principle supporting the government’s argument,” the statement of amicus curiae says, with it being filed by law professors Erwin Chemerinsky, Martha Minow and Laurence Tribe on Sunday night.
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“At bottom, the government’s argument is that, once the Executive Branch has removed an individual from the United States and arranged for that individual to be held in a foreign prison, an Article III court is constitutionally disempowered from ordering that the individual be returned to the United States — regardless of whether the Executive Branch’s removal of the individual lacked any statutory basis, failed to afford the individual any due process, and flouted a court order, issued pursuant to a congressional statute, barring the removal,” Chemerinsky explained.
“There is no logical stopping point to the government’s dangerous argument,” he said.
Chemerinsky is the dean of the University of California, Berkeley, School of Law, and also serves as the Jesse H. Choper Distinguished Professor of Law. Minow is described as the “300th Anniversary University Professor” at Harvard University, where she has taught at the Harvard Law School since 1981 and served as dean for eight years. Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard and has taught at Harvard Law School since 1968.
“Amici are world-renowned scholars of constitutional law who collectively have authored scores of journal articles and books addressing constitutional issues including separation of powers, the limits of Executive Branch power, and the role of the Judicial Branch,” the filing said Sunday. “Amici have an interest in this case because, as scholars who have dedicated their careers to constitutional law, they have a special interest in ensuring that the balance of powers between the Executive, Legislative, and Judicial branches accords with the requirements and purposes of the Constitution.”
In the case of Abrego Garcia, the amici detail how Trump and his administration are “effectively asserting absolute, unreviewable authority” to remove the Maryland man from the United States, “even where the removal was in conceded violation of a court order,” the trio says.
“If this court were to adopt the government’s position here, it would dramatically expand the Executive Branch’s power at the expense of fundamental individual liberties, and diminish both the Legislative Branch’s and the Judicial Branch’s power in unprecedented and dangerous ways,” Chemerinsky concluded. “If the government’s argument were correct, the Executive Branch would possess a shuddering degree of power — power that the President could wield in extreme and extraordinary ways, including against American citizens that the President simply disfavors.”
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Jerry Lambe contributed to this report.
