Late Thursday, a unanimous Supreme Court ordered the Trump administration to “facilitate” the return of Kilmar Abrego Garcia, the Salvadoran citizen who was in the United States legally but illegally rendered to a Salvadoran prison over what the administration admits was an “administrative error.” Now the same administration that claims the U.S. can take over Greenland and Canada is pretending it can’t dictate policy to another country. “If they want to return him, we would facilitate it, meaning provide a plane,” Attorney General Pam Bondi said Monday during an Oval Office meeting between Trump and Salvadoran President Nayib Bukele. “That’s up for El Salvador if they want to return him,” she argued.
Bukele, for his part, completed the shell game: “I don’t have the power to return him to the United States,” he insisted. But the U.S. can do far more than “provide a plane” to “facilitate” Abrego Garcia’s return. When the White House asserts it is out of ideas for how to bring him back, don’t believe it.
The White House has deployed a wide range of tactics to secure the compliance of those over which it has little direct or legitimate authority.
The Trump administration has attempted — not very successfully — to use on-again-off-again tariffs to try to bend foreign governments to its will. It has attacked law firms to punish them for past perceived slights of the president, to get them to refrain from suing the administration in the future and to force them to serve the policy goals of the administration. It has slashed billions of dollars in contracts with and grants to America’s most prestigious research universities for not serving the Trump administration’s interests.
In other words, the White House has deployed a wide range of tactics — mostly on dubious legal grounds — to secure the compliance of those over which it has little direct or legitimate authority. As the Trump administration suddenly draws a blank on how it could pressure the Salvadoran government to return Abrego Garcia, then, no one should take such claims seriously.
If the administration’s position is that once anyone is outside U.S. territory and custody, courts cannot order their return — no matter how illegal or unconstitutional that rendition — what would stop the federal government from sending anyone, citizen and noncitizen alike, to a prison camp in some other part of the world without recourse? To put it bluntly: nothing. Under this logic, if the administration could do this to this individual, literally no one is safe, provided they are whisked out of U.S. government custody and control.
With its ruling Thursday, the Supreme Court rejected this sort of race-to-the-border logic. Now that the Supreme Court has stepped in and ordered Abrego Garcia’s return, it is up to the Trump administration to comply. But the court’s unanimous order also leaves the White House a little wiggle room. The court found that one aspect of the lower court’s directive, that the administration “effectuate” Abrego Garcia’s return, was “unclear, and may exceed the District Court’s authority.” It directed the lower court to “clarify” that directive, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” At the same time, it also found that the administration “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
If the administration, and the trial court, are looking for some guidance on what steps the government could take to “effectuate” Abrego Garcia’s return, they need not look past the free-wheeling actions of the administration over the last month for some tactics for achieving that goal. The playbook from which it is drawing its current tactics is full of ways to bring Abrego Garcia home. And it won’t take much.
The U.S. government could pressure the Salvadoran government in any number of ways, like it has other nations and institutions.
The U.S. pays El Salvador to detain deported migrants like Abrego Garcia. The administration could threaten to cut those funds or suspend future transfers unless he is returned. It could increase tariffs. It could assert the power to increase tariffs on other countries that do business with El Salvador. It could cut foreign aid to the country. Indeed, the U.S. government could pressure the Salvadoran government in any number of ways, like it has other nations and institutions. If it even hinted that it might consider any of these tactics, Abrego Garcia would be on the next flight home. That it refused to even try speaks volumes.
In the long run, as at least some members of the court recognize, any judicial ruling short of ordering the Trump administration to secure the return of Abrego Garcia will simply encourage the federal government to deport individuals — noncitizens and citizens alike — and place them in the hands of a foreign power as quickly as possible, putting them out of the supposed reach of the law and the Constitution. In a statement appended to the court’s order, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson warned of this possibility: “The Government’s argument, moreover, 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.”
For now, the Supreme Court did not say exactly how the Trump administration should comply with its orders, but the justices at least did what they had to do in this setting: declare these actions illegal. If the Trump administration does not move to bring Abrego Garcia home, it will only raise the stakes. The courts should not tolerate the White House’s feigned powerlessness, especially when it has tried to stretch the bounds of its own power in so many other contexts.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”