Mixed Ruling in El Salvador Case

Yesterday, the U.S. Supreme Court issued an order partly granting and partly denying the Department of Homeland Security’s application in the case of the deportation of Kilmar Abrego Garcia to El Salvador, noted in this post Monday. Here is the dispositive paragraph:

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by The Chief Justice, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the 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 and to ensure that his case is handled as it would have been had he not been improperly sent to 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. For its part, the Government should be prepared to  share what it can concerning the steps it has taken and the prospect of further steps. The order heretofore entered by The Chief Justice is vacated.

This order is widely reported as a big loss for the Administration. However, the Court also fired a warning shot across the District Court’s bow with the “unclear, and may exceed the District Court’s authority” and “deference owed to the Executive Branch in the conduct of foreign affairs.” No doubt the next steps in this case will receive close scrutiny from the high court.

This incident reinforces the importance of notice and opportunity to be heard when the government takes actions affecting people’s lives. Government officials do make mistakes, even when they are acting in good faith. Whether Abrego is actually a gang member remains disputed and has not been proved by any standard of evidence.