Shockingly, some D.C. judicial pigs have taken wing

Our alleged Supreme Court tonight upheld a district court’s order to return the Salvadoran migrant, Kilmar Armando Abrego Garcia, whom the government had wrongfully deported to El Salvador, where he has been held in the notorious Terrorism Confinement Center prison for the last 26 days. “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 order, issued in response to an appeal by Garcia that he had been wrongfully seized and deported along with some 200 alleged Venezuelan gang members, cautioned District Court Judge Paula Xinis that she should define more precisely what she had meant by the word “effectuate” in her order to return Garcia, whom she said the government had deported by a “grievous error.”

The Trump administration had alleged without evidence that Garcia is a member of the violent street gang, MS-13. Garcia has been a resident of the United States with protected status for 10 years, during which time he has never been arrested. He is married to a U.S. citizen. Judge Xinis found that the “evidence” against Garcia “consisted of nothing more than his Chicago Bulls hat and hoodie and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.” Garcia has been a resident of Maryland and claimed never to have been to New York.

For its part, the Trump DOJ admitted in court that Garcia had been deported in an “administrative error” and claimed that there was nothing that could be done to return him to the U.S. because he was being held by a foreign nation, to which the U.S. government had turned him over. Garcia had been given no due process to challenge his deportation under the Alien Enemies Act. In a separate order earlier in the week, Chief Justice John Roberts had temporarily allowed the government to continue using the 200-plus year old law but said that future deportees had to be given due process notice of the proceedings against them and were entitled to challenge their deportation in court. Garcia had been given none of the due process now ordered for future use of the Alien Enemies Act by the Trump administration.

The Supreme Court’s three liberal justices, Sotomayor, Kagan, and Jackson, signed a “statement” as part of the court’s otherwise unsigned order. Justice Sotomayor wrote that the Trump DOJ had asserted that it could refuse to return Garcia to the U.S., against the order of a federal judge, “for no reason recognized by law,” and that the Trump administration position “implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.” `We could get down in the weeds as to why the court’s order was issued without naming its author or giving even a hint of what the vote might have been, but the most likely reason is that Roberts, Alito, Thomas et. al. had no interest in putting their names on a legal ruling that is bound to draw fire from Donald Trump and his political and legal sycophants.

The Supreme Court’s order in the Garcia matter is a victory for the wrongfully deported Salvadoran migrant but does not address either the fate of the Venezuelans deported along with him or the use of the Alien Enemies act to justify their deportation. The Alien Enemies Act allows the government to deport persons in a “time of war” who are considered dangerous to the country’s national security. There has been no declaration of war against Venezuela or any other country. The deported Venezuelans, many of whom claim they are not gang members and were rounded up on the basis of their soccer team tattoos and nothing else, are not “enemies” under any definition of that word.

How much leeway the Supreme Court will end up giving the Trump administration to use the Alien Enemies Act is not yet known, but today’s order provides hope that at least some due process will be observed in the deportation of migrants from this country. Under today’s order, the Trump administration will be forced to return at least one wrongfully deported migrant, and the court ordered the government to “be prepared to share what it can concerning the steps it has taken and the prospect of further steps” with respect to the return of Garcia. That smells suspiciously like judicial oversight of the Trump DOJ and Department of State, which until this moment have acted in their enforcement of the laws and in judicial proceedings as if they are being run by a criminal gang.