Ed Whelan on Wrongful Deportation (With Potentially Related Thoughts from Seth Barrett Tillman)Michael Ramsey

At NRO's Bench Memos, Ed Whelan: Some Observations on Strong Supreme Court Ruling Requiring Trump Administration to ‘Facilitate’ Return of Wrongly Deported Alien.  From the introduction: 

The Trump administration has acknowledged that, as a result of an “administrative error,” it illegally removed to El Salvador an illegal alien, Kilmar Armando Abrego Garcia, who was subject to a withholding order that forbade his removal to El Salvador. Abrego Garcia has been detained since mid-March in a prison in El Salvador that the Trump administration is paying El Salvador to provide. Despite acknowledging that it illegally removed Abrego Garcia, the Trump administration has not sought to return him to the United States. Indeed, it has aggressively fought a district-court order entered on April 4 that calls for it to “facilitate and effectuate” his return.

In an order [Thursday] evening in Noem v. Abrego Garcia, the Supreme Court, without any justice registering a dissent, ruled that the district-court 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 Court’s order states that the “intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority.” It tells the district court to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” It also states that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

And from his observations:

The Trump administration completely deserves this loss. As Justice Sotomayor points out in her separate opinion, the Trump administration’s 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.” (The fact that I am agreeing with Sotomayor signals how ludicrous DOJ’s position is.)

...

Contrary to the DOJ statement [after the ruling], the Supreme Court did not “recognize” that “it is the exclusive prerogative of the President to conduct foreign affairs.” Further, unless it is very narrowly construed, that proposition is not sound. To cite just a few examples: Congress has the authority to “declare War … and make Rules concerning Captures on Land and Water.” The Senate has the authority to approve or reject treaties. The Senate has the authority to confirm or reject the president’s nominees to be ambassadors. Congress has the authority to “regulate Commerce with foreign Nations.” Congress has the authority to make immigration laws. The federal courts have the authority to interpret treaties as well as all the laws that Congress enacts that bear on foreign affairs.

And in conclusion:

In the immediate aftermath of the Supreme Court’s order, federal district judge Paula Xinis revised her order and directed the Trump administration to “take all available steps to facilitate the return” of Abrego Garcia. We shall see if, and how quickly, the Trump administration complies. If it doesn’t, or if it drags its heels, a momentous clash may be in the offing.

POTENTIALLY RELATED to the last point: 

At New Reform Club, Seth Barrett Tillman: Ruminations on Judge Boasberg’s Choices: Holding Litigants in Contempt in the Context of Emergency Orders.  From the introduction: 

The Supreme Court has stayed Judge Boasberg’s orders [in the Tren de Aragua case]. It appears a contempt citation running against the government or its counsel (the Department of Justice) or both is off the table—at least for now. But the procedural issues that arose in Boasberg’s case and several other recent cases against the Trump-47 administration are likely to arise again. Here, I want to clarify how federal courts and the wider public should understand contempt citations arising in the context of emergency litigation. ...

AND FURTHER:

Seth Barrett Tillman: A Critique of John Yoo on Ex parte Merryman.