What Matters Is What The Court Says

Political process v legal process:

Steve Vladeck: Scott keeps trying to make this a political conversation. I‘d like to get back to the law here. And the law here is that he was removed to El Salvador in defiance of a court order that literally said he could not be removed to El Salvador.

Scott Jennings: He had due process!

Follow the link to the video, you’ll find Jennings elevates political process above due process. The true MAGA position: politics over even the Constitution. His result would be the death of the Constitution. He’s no more worth arguing with than an internet troll. 🧌 

A little more analysis from Professor Vladeck:

In a Tuesday morning tweet, Vice President Vance rhetorically asked a critic whether they were “proposing that we invade El Salvador to retrieve a gang member with no legal right to be in our country?” Leaving aside that there actually is a statute on the books that requires the use of military force against a foreign government in an analogous circumstance, this is a ridiculous strawman. If a federal court orders a defendant to take all lawfully available steps to remedy an ongoing legal violation, the defendant has an obligation to do so—even if those lawful steps turn out to be insufficient. So, for instance, a federal court could order the government to request Abrego Garcia’s return. A federal court could order the government to stop paying El Salvador to detain Abrego Garcia. A federal court could order the government to pursue any and all diplomatic means to “effectuate” Abrego Garcia’s return. And it could require a senior government official with direct knowledge of the facts to testify as to what efforts the government has (and has not) made in this case—and, to illustrate the distinction, what efforts the government has made in other, prior cases where it has been able to get folks back who were wrongfully removed, extradited, or otherwise transferred.

Finally, even if a federal court can’t order the government to invade El Salvador, it can at least attempt to impose consequences on the government for failing to take all possible steps to procure Abrego Garcia’s release. Thus, a court could consider monetary sanctions (against Secretary Noem, for example) if, by a specific date, the United States hasn’t, in the judge’s view, done everything lawfully possible in this case. The sanctions thus become the incentive for more aggressive efforts at “facilitating” Abrego Garcia’s return. A court could refer lawyers who refuse to follow its instructions or otherwise fail to live up to their obligations of candor to the tribunal to their state bars. And so on. In other words, there’s a wide swath of daylight—and of judicially available relief—between invading El Salvador and just taking the government at its (facially preposterous) claim that it’s totally powerless. (Indeed, if the United States really is totally powerless in this case, what does that say about the Trump administration??)

It wouldn’t surprise me if this is where things go in court—with Judge Xinis ratcheting up the pressure on the government, and contemplating, if not imposing, escalating sanctions for every day in which it does nothing to even try to facilitate Abrego Garcia’s return, at least to her satisfaction. (The next hearing before Judge Xinis is set for 4 p.m. today.) That might get this case back to the Supreme Court quickly—where the justices will have to decide what to do now that President Trump has so publicly called their bluff. My suspicion is that even justices who are more sympathetic to the need for deference to the President when it comes to foreign affairs will not take kindly to the conduct we’ve seen since Thursday.

The mills of the law grind slowly, but they grind exceeding fine.

And adding, something the court knows but Professor Vladeck may not (when he was writing):

And then the last one will be if she does, in fact, the district court judge hold them in contempt," Goodman continued. "I think one of the most important parts of the order that she gave this evening is she actually points to one of the ways in which the United States government seems to have control over the matter. She says it's inexplicable that Abrego Garcia is still being held in secret. And then she drops a footnote and cites the text that we do have from the written agreement with El Salvador that's been released by The Associated Press, because they obtained part of the agreement, which says that they'll be held in, held in CECOT, quote, 'pending the United States decision on their long-term disposition,' end quote."

"That's what the judge says, which is basically saying, you have much more authority, the United States government, to do something here, to do anything, take certain steps to facilitate his release, then," he added.

Change the facts, change the outcome? These could well be the facts that do that.