Bulwark Takes - SCOTUS Orders Trump Administration to "Facilitate" Return of Wrongly Deported Man

Episode Date: April 11, 2025

Sam Stein speaks with Kyle Cheney to break down the Supreme Court upholding a lower court's order that the Trump administration but "facilitate" the return of Kilmar Abrego Garcia, a Maryland man wrongly deported to El Salvador.

Hey guys, it's me, Sam Stein, managing editor at The Bulwark. I'm joined by Kyle Chaney. He is, I want to do the J.D. Vance title. What is the J.D. Vance title, Sam? I'm pulling it up. I think it's just scare quotes. You just need scare quotes. Legal affairs reporter. I'm going to put it, legal affairs reporter at Politico. Old colleague of mine who I happened to edit for a little bit, just a small period of time. Kyle is joining us because we're going to dissect a relatively new story, breaking news. Kilmer Obrego Garcia, the Maryland man who was wrongfully sent to El Salvador by the administration, has been, I guess, I want to describe, what's the correct way to describe what the Supreme Court said?

He has to be returned, effectuated his return or something? It's somewhat complicated by the typical impenetrable verbiage of the Supreme Court. Okay. But they basically said that the judge who ordered him returned to the U.S., she ordered the administration to both facilitate and effectuate his return. Okay. The Supreme Court said the facilitate part of that is right. They have to facilitate his return to the United States. What that means in the details is sort of what the next step is.

Let's talk big picture first. This is a 9-0 decision, correct? So I've also been told – Or that's also not true because they didn't sign – sorry, go ahead. It's a no-noted dissent. So I think maybe colloquially, sure, if some justice is harboring some opposition to this outcome, they didn't tell the world that. So we can say, for all intents and purposes,

I don't want to say unanimous, but it is a unanimous decision. Let's just say that. And it is a loss for the administration, which had been arguing that they had legally taken this man to El Salvador, that in fact that they couldn't bring him back because he was out of their jurisdiction. Now we sort of wait to see how the administration reacts, correct? Yeah. And actually, so far, we just got their statement and it's sort of they're trying to claim victory here in a way that they're saying that the court acknowledged that the executive branch has this sort of primacy on foreign policy, foreign policy, foreign

relations authority that they the one thing the Supreme Court did was say, the judge who issued the order has to sort of clarify it to make sure she doesn't overstep into the executive branch's lane. And the administration sort of zooms in on that part and says, see, we told you that we have the exclusive authority over foreign policy, which is actually not what the court said, but it did sort of tell the court to be mindful of it. Now, the backstory here is that in judicial filings, they admitted that Obrego Garcia could not be sent to El Salvador, that there was a judicial, prior judicial order saying, you know, he would have been threatened had he been sent there, he would have been

endangered had he been sent there. And the administration did it anyway. Did they ever get around to sort of explaining in any concrete detail why they went and took that step? Or did they just acknowledge that it was a massive fuck up? That's essentially what they said. And everyone along the way has acknowledged that the Supreme Court took it for granted. This was an improper removal. They called it a clerical error, an administrative error. It seems bizarre because this is a court order from 2019. It had been in effect since 2019. And they threw this guy on an airplane at the same time. They were also deporting all these sort of alien enemies under the president's war powers.

This guy was not part of that, but he was just sent along in the same sort of batch of people that they were shipping out as fast as they could. And then later on, they realized, oh, wait wait there was an order that was supposed to block that and jd vance was very and the reason we brought the scarecrows up is because after it became public through a piece in the atlantic that this man was illegally sent to el salvador uh jd vance took to twitter and then attacked you and other people for the i i think that's fair for for basically saying you did this illegal jd vance's argument was like no this guy's member of ms-13 he was convicted which he was not i just want to be clear about that and that they had the legal right to uh send him and deport him to el

salvador does this court decision from the supreme court address the specifics of J.D. Vance's critique or no? Not precisely. I mean, J.D. Vance was just wrong when he called this guy a convicted gang member. This guy was suspected of being a gang member and had some initial sort of preliminary immigration proceedings in which the judge said, I'm persuaded, so I'm going to keep him detained. And then as you noted, they later ruled that he couldn't be sent back to El Salvador because he might be at risk of persecution by a local gang. And so that's why they released him and let him live in the United States for the last six years. And the other thing, though, was that when the judge said, the lower court judge said, you need to get him back, they scoffed at that. They said, no, that's well beyond our jurisdiction. You have no control over any law in El Salvador. There's no way we can get him back. So sorry, Ponce.

Why would their posture change now? Well, there's two questions, right? It's what can the court order and what can the administration actually do in this scenario? And what the administration initially said was the court cannot order us to do something in terms of how we interface with a foreign government. That's exclusively the president's job. You can't tell us what to do. And then the second thing is, can the court tell the government what, or I guess, can the administration even demand someone's return from a foreign government? And what they said more recently was, we don't actually have the power to tell the El Salvador government what to do with this guy. Even if we asked, they might say no. Yeah, but are we paying El Salvador millions upon millions of dollars to house these people?

One of the things that's significant about the ruling, I think, in the Supreme Court is they said the administration should be prepared to provide information about what it has been doing in this regard and what it might do in the future. And so the courts haven't really said like, hey, have you asked for him back? Have you said, hey, you know, President Bukele, can you send this guy back? We screwed up. And he said no. They haven't even said whether they've tried. Have they offered any details whatsoever about how they're monitoring this man and whether they even know if he's in the prison still or alive? They, they have not said anything to that effect. What's interesting is that he, the president of El Salvador is going to be at the White

House on Monday. Will he bring, will he bring Obrego Garcia with him? He could, he could be on the plane or they could just, they could have, you know, President Trump could say, hey, why don't you send that guy back so we can fix this mistake i'm somewhat doubtful that will happen but but they'll have a chance i mean the expectation the expectation now is that if he does come back they're just going to find another vehicle and avenue to deport him and you know what that would be in accordance with the law i mean this guy you know he denies he's got any gang connection, any MS-13

connection. But didn't the original 2019 ruling say he was subject to deportation, just not to El Salvador? He applied for asylum. They said, no, you are not eligible for asylum, but we're not going to let them deport you to El Salvador specifically because that is where you're in danger. But if they could find somewhere else to take him, it seems like he could be removed. But there would be a process and he would have a chance to sort of make certain arguments that he didn't get a chance to make. Right. And I guess I want to try this. I'm probably going to do this inelegantly and you can correct me or just summarize it better. But the backdrop of this is the Supreme Court decision earlier this week, which is, can you deport Venezuelan migrants under the

Alien Enemies Act without due process? And the court said, frankly, no, you have to give them the right of habeas petition. You do it in the place where they're detained, but you do have to get the right of habeas petition. The reason that this is significant, tonight's decision is significant, is because had they said that the government had no no responsibilities to bring back abrigo garcia it would have given um kind of a backdoor avenue for the government to basically just try to get ahead of the courts i.e deport someone say oops we forgot to do the habeas petition but we can't do anything about it not because they're in a jurisdiction overseas right and this seems to close that door, as dark as that door is.

I actually think if you look at these two rulings as sort of bookends on this issue, they actually say something much larger, which is not only is due process required in every circumstance and meaningful, meaningful due process, reasonable notice. You can't just give someone 10 minutes and say, hey, get your lawyer on the phone in 10 minutes or we're going to send you out of here. It's got to be meaningful and reasonable. And on top, and now what they said in tonight's ruling, in the Abrego Garcia ruling, is he's already overseas, but he can still mount this legal challenge. So he has some habeas rights even overseas. Even overseas.

And now there's 130 Venezuelan nationals sent overseas. A lot of them claim they were mistakenly identified. That's a good point. They may have, they may be able to cite this ruling for Obrego Garcia as some chance to challenge their detention over there. And in what jurisdiction now? You could see, well, I mean, there is some case law that people who are outside the territory of the United States have jurisdiction. Right. Get Moe. DC, maybe they go right back to Judge Boasberg. I'm actually, I'm curious about that. But,

you know, that's for another day, but I think. So you think this, this, you think this is a bigger decision, this decision will have implications well beyond a break-aggression? I think the, the combo of these two could actually be quite significant at this moment where we're seeing this haste, this rush to deport people with limited due process, if any. All right. What's your line on this? What's the large takeaway here about the relationship between this Supreme Court and the administration? Maybe let's narrow it to just on the issue of the deportation regimes. Well, you know, I've talked with my colleague Josh Gerstein about this a lot.

We sort of wonder this. There have been a lot of stories lately about how the Supreme Court's giving Trump everything he wants. Well, this week it's clearly proven untrue. And it does seem like there's a difference to them in terms of immigration policy than, say, all these efforts to dismantle the administrative state. They seem much more aligned with Trump on the doge, you know, just, you know, fire people who are at independent agencies, get rid of the probationary employees, fine. They're not standing in the way of that so far. But on immigration, it doesn't seem like they're as invested in the same Trumpian project as they might be in other ways. Why do you, what's your explanation for that?

I just think it happens. It's, it's, it's who they are. It's who these people are, their backgrounds, you know, what issues they've cared about, you know, that have come up in sort of the nomination process. I don't think there were any particular any of the justices that I'm aware of have some particularly known vested interest in immigration policy or something. You know, it just is not something that it was really as salient to a court that's thinking about remaking

the balance of government domestically. Got you. All right. Well, we'll keep watching it. Kyle, thanks so much for doing this. I appreciate it. People should, if you're not following Kyle, it's like you should be following Kyle. But it's like getting the Supreme court or any court news injected straight

into your veins. I don't care what JD Vance uses the scare quotes. He's the real deal. Kyle Chaney. Thank you so much, man. Really appreciate it. Good to be with him.