We’ll see if any of the other resident lawyers see fit to chime in. I think I’m trying to point out a legal distinction that may not be clear - or that I am not clearly explaining - to non-lawyers.
In NO WAY am I excusing what this administration did, or suggesting they ought not do whatever they can to get him back. And, of course, I agree that the US COULD easily get him back. Instead, I’m trying (not successfully) to point out some limitations as to the sorts of relief courts ought to be able to impose.
Like I said, the admin has done so many inexcusable - and IMO illegal - things so far. I’m not interested enough in this one situation to look further into limitations on court ordered relief. (And, yes, of course I would be motivated to do so if it were someone I knew/cared about.)
I’m still not understanding how it’s at all ok to “deport” people to a prison in a country they are not from, and probably have never been to just based on being suspected criminals. Already this seems like a huge red alert situation. Then for them to claim that there is nothing they can do to correct a mistake THEY made? I mean we are talking about human beings here. AFAIK the Constitution does not limit due process to only citizens. It really feels like they are setting the stage for being able to ship anyone they don’t like off to the gulag with no oversight or recourse. Terrifying stuff. I understand they are arguing that judges should not be able to limit the executive in any way, across the board. But this argument seems to fly in the face of the entire Constitution. They chose to utilize this foreign prison. That should not inoculate them from consequences. That seems to be an incredibly dangerous precedent to set.
I’m sorry I am not making myself any clearer. I never said it was “OK.” Please point out where I said that.
And of course it was a 5th Am violation. But having said that, I do not believe the court ought to impose an illegal form of relief. Two wrongs and all that.
My SOLE issue is what relief the court can impose.
Say the government wrongfully convicts someone. A court can order them released and, if sued, can order $ damages. What they CAN’T do is order a government official to be the person’s butler. Or order the government to have a specific business hire that person.
Like I said, maybe I’m completely off base as to the narrow point I’m trying to make. I’m a tad disappointed at myself, however, that I have not been able to make that narrow point more clearly understood by others. I’ll step out, now, as I’m not adding anything of value.
Ahah, I’d missed that there were two cases going on under two separate judges. I thought we were just talking about Boasberg (who hasn’t made any such demand). Let me see…
I suppose that I concur that the judge should have more clearly stated that the government needs to demonstrate a true and willing interest in seeking the return of the man.
It’s the fault of the Administration for doing what they were instructed not to do. They violated an order.
Say there is a civil suit over a piece of land, who owns it? The plaintiff goes to court to contest ownership. While doing so, the defendant sells the land. But what the plaintiff wanted was not the value of the land, they wanted the physical property that had sentimental value.
The court can order that the sale was made in bad faith and order the return of the property from the new buyer and put the property in escrow.
Think about stolen property. You buy something secondhand “for a steal”. Then the cops come calling. That was stolen property and evidence in a crime and the rightful owner wants it back. You may not have willingly committed a crime, but technically you did - receiving stolen property. They collect the items and you probably won’t have charges if they don’t think there’s any reason for you to have known. Probably. If you don’t want to give the items back, though, then you probably will be charged with something.
The Administration exceeded their authority and violated due process. If the courts can’t compel the government to act to undo that violation, then the Constitution is a worthless piece of paper. The government can grab any citizen off the street, beat them senseless, throw them in a hole, wave a bogus confession, and shoot that citizen in the head the next morning, because the courts have no meaning.
Faulty analogies. That company fired you directly. Recourse is some form of restitution, including rehiring, back wages, clearing record, and damages, both direct and punitive. There’s no other company involved.
This situation, the US wanted that other country to have him. They didn’t want him on their own. There’s no credible evidence he is a “terrorist” or gang member. That’s just “Lies The Trump Administration Tells To Confuse The Rubes.”
Same thing with Europe and Ukraine. The Courts don’t have jurisdiction over other countries. But they do have jurisdiction over the activation of the US Government. This Administration violated due process and court orders. They’ve been ordered to fix it.
Suppose it were not a case where the US was paying El Salvador for taking our prisoners. Suppose El Salvador came to us looking for these gang members. We’ll, we still did wrong because we have them someone who isn’t a gang member. “Oops, we said he’s a gang member but just made that up. Give him back please.” El Salvador could tell us to pound sand, but we would need to expend diplomatic effort to free a wrongfully accused, especially since we did the accusing.
Saying, “Oh, there’s nothing we can do,” is a blatant lie and an abrogation of Constitutional duty.
The courts have power to direct the government to correct its mistakes, even if those mistakes involve actions taken with other counties. They can’t make the other country’s comply, but they have the jurisdiction to direct the government to make efforts to undo the mistakes.
If the US can’t get this non El Salvadoran back from El Salvador, then the US can’t get anyone back from El Salvador. The next US citizen who gets picked up on trumped up charges in El Salvador is fucked. The US can’t do anything about it. They said so.
But it is not illegal for the courts to direct the administration to undo their mistake. It is within their power to direct the administration to get him back, or expend credible effort to do so.
Just like the migrant children that were separated from their parents and put into foster care with no tracing records. Some number of children will never be found and returned, because there’s no way to do so. That doesn’t mean that the courts were wrong to order the government to track down every child and report on the status.
The fact that nobody was shot for that makes me sick. The fact that those are back in power makes me want to punch somebody.
Well, there IS the concept of a good faith purchaser.. The original plaintiff/victim MAY NOT get their property back. Their relief MAY be limited to dollar value. But definitely not my area of expertise.
Yeah - pretty sure I noted as much myself. But I do not expect this particular question to be resolved via analogies.
Thanks. Please point out the statutory/caselaw support for this proposition. Not saying it doesn’t exist - just that I am not aware of it.
Again, I am not discussing what SHOULD be done. Instead, I am questioning what CAN be done under our existing legal system. If the court has the authority to order such action, it should be pretty straightforward to spell out the authority.
I think the part that people are having trouble with ( or at least I am) is which action are you asking about. Does the court have the authority to order El Salvador to turn him over? No. Does the court have the authority to order Kristi Noem to go there personally and get him back? Probably not. Does the court have the authority to order the US to do anything in their power to fix the mistake that was made when they chose to ignore the immigration judges order and deport this man anyway? I don’t see why not - is there a list of particular actions that courts may and may not order or does that sort of thing depend on the specifics of a case?
Yes - very much so to your last sentence. Well, not really a list - but in general a court is not authorized to simply come up with whatever form of relief the judge thinks is “fair” or “appropriate” in order to “make a party whole.”
I’ve said all along that I might very well be wrong. Law school was too many decades ago, this is not an area in which I ever practiced, and the possibility very much exists that I’ve been a crappy lawyer/judge throughout my career. Whatever the answer - well, we’ll soon see what the outcome is, so my thoughts matter little. I’m not going to make researching this a major effort.
I did look up the most recent decision at issue. I apologize that I am not going to look up the preceding order or the cases cited below, but here are a couple of portions I think relevant - from the “redressability” section.
First, Defendants can and do return wrongfully removed migrants as a matter of course. This is why in Lopez-Sorto v. Garland, 103 F.4th 242, 248–53 (4th Cir. 2024), the Fourth Circuit.concluded that the Defendants could redress wrongful removal to El Salvador by facilitating the plaintiff’s return per DHS’ own directives. Id. at 253; see also Nken v. Holder*, 556 U.S. 418, 436 (2009) (“Aliens who are removed may continue to pursue their petitions for review, and those that prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.”)*
…
*The record reflects that the remedy is available. *
…
Abrego Garcia requests relief designed to retore the status quo ante, or the “last uncontested status between the parties which preceded the controversy.” League of WomenVoters of N. Carolina v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). That is, to return him to where he was on March 12, 2025, before he was apprehended by ICE and spirited away to CECOT.
Like I said, perhaps the DCt judge is correct on all of those points and the relief ordered is available to them. We’ll see how the appeals unfold.
This is all even more weird, because El Salvador is essentially acting as a contractor - simply holding these deportees for 1 year or until the US reaches some final disposition on each individual. So this really seems different than ordering the government just to initiate some nover interaction with a foreign state.
The decision I linked is quite readable. I imagine the preceding one was as well. Very clearly sets out the issues - as well as the govt’s IMO indefensible conduct.
Apologies that I seem to have created more confusion than clarity.
Posted in at least 2 other threads in this forum, the Supremes uphold the DCt order that the admin “facilitate” his return, but refuses to order that they “effectuate” it. And, in the proces the admin has to share the steps they’ve taken and the prospect of further steps.
So - the courts can order the admin to do - something, I’m not sure exactly what.
In reality, I’m sure it requires nothing more than a phone call. But we’ll see whether/how the admin complies.
I think the difference here is agency. The business in your example is not an agent of the United States. Serving as a butler is likely not within the scope of a federal employee’s duties.
But El Salvador is definitely acting as an agent of the United States, paid by the US government to provide a service. And the principal in any principal-agent relationship IS expected by the law to have some control or direction of its agents and to be legally responsible for the acts of its agents within the scope of their agency.
The Trump (mal)administration paid the Salvadorian government $25,000 (IIRC) per person per year for detainees sent to El Salvador to be detained in a particular prison operated by that government which it admits and indeed promotes as being particularly harsh (no reading but the Bible for 1/2 hour a day, no talking, no communication with the outside world) and from which nobody will return home. Trump is getting precisely what he (ordered the government to) pay for, so there’s no issues in my mind that the Salvadoran government is acting with the scope of its agency.
If I were a federal judge, I would have no problem ordering the US government to direct its agent the Salvadorian government to return one, any, or all of the persons detained under the agreement between the US and Salvadorian governments, nor in holding the US government and its officials legally responsible for obeying that order to the best of their abilities.
The number one problem with that is who is going to arrest and hold Rubio - I’m guessing not the US Marshals who are part of the DOJ and ultimately report to Pam Bondi.
Bukele himself is Trumpy and may not like the precedent of a Salvadoran being released from the prison that nobody leaves. If Trump is insistent, sure, Bukele would probably humor the bigger dictator.
Should Trump be impeached and removed if he refuses to insist on Abrego’s return? Yes. Can it happen? No.
SCOTUS cannot force Abrego’s return. But they seem on the road to stopping future such outrages.