What Do “Facilitate” and “Effectuate” Mean?

I agree with James Joyner that the SCOTUS ruling concerning Kilmar Abrego Garcia, whom the Trump administration admits that they mistakenly sent to life imprisonment in El Salvador, is a good outcome. I concur that there is some hope to be derived from the unanimous nature of the order.

But.

But.

I am not so sure that the result is going to be the return of Abrego Garcia. Moreover, I expect that the Trump administration will comply enough to demonstrate that they are not disobeying the high court, but not enough to actually get the man back into the United States.

Let me hasten to add that I hope that I am wrong here.

However, I think it is important to start off from the perspective that the Trump administration has already admitted that they sent him to CECOT by mistake and their response has basically been “oopsie!” alongside a helping of shrugged shoulders and “well, too late now!” There was already a clear callous disregard for due process and basic human rights in the way they dealt with the renditions in the first place.

So, yes, the administration has kind of sort of had their hands slapped by the Supreme Court. And, yes, I hope, because it is the humane thing to do to hope, that Abrego Garcia is returned to his family.

I am heartened that the Court called the removal and deportation of Abrego Garcia “illegal.”

But there are a couple of things that were nagging at the back of my brain about this ruling, even before I read James’ write-up.

Specifically, the following passage from the Court concerns me.

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 intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

First, there is the practical barrier that Abrego Garcia is being held not by the US government, but by a foreign government. We cannot order El Salvador to do anything. While I accept that if the Trump administration really wants to comply, they could find a way to pressure the Bukele administration to cooperate. But as noted above, I am not sure at all that they care about any of this enough to try all that hard.

Side note: the complexities associated with the courts not having jurisdiction over foreign prisons are why using them is a terrible idea if a person believes in the rule of law and our constitutional order, and why using them is an awesome idea if a person wants to govern outside the law in a dictatorial fashion.

Second, the issue that truly concerns me is located in the bolded portions above.

I expect there to be an additional challenge by the administration that will end up back with SCOTUS over what “facilitate” and “effectuate” mean. Minimal action is likely to suffice.

Worse, however, I think that the administration will ultimately be able to hide behind “the deference owed to the Executive Branch in the conduct of foreign affairs.” Given the expansive immunity powers the majority of SCOTUS has already granted to the Preisdent (and the reasoning they used to do so), I expect that if the administration makes any foreign policy-based argument whatsoever about why they can’t get this man back, then I think that at least five of the conservatives will defer to the White House. Note that Bukele is likely not to want someone to leave CECOT and then be able to talk about CECOT.

I fear that minimal action on the part of the administration will result in Abrego Garcia remaining at CECOT and with the administration still in a position to have complied with SCOTUS.

I hope that I am wrong.

I understand the desire to see this as a positive outcome in a sea of terrible news out of this administration. But I am at the point where betting on the more negative outcomes seems wiser than seeing lights at ends of tunnels that end up being oncoming trains. SCOTUS has done such a poor job of protecting us against an obviously encroaching autocracy that I am having a hard time seeing them not eventually capitulating on some “national security” argument (scare quotes intentional).

Let me add that in the immunity ruling, the Court said the following:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.

If the Roberts Court thought this as a general matter, how will they rule if the administration makes an argument that leaving Abrego Garcia is essential to the conduct of US foreign policy, which is clearly within the constitutional authority of the president to conduct?

Again, I hope that I am wrong, but I fear that I am not.