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PaperclipPerfector  12d ago (text post)   32018 thread views

Culture War Roundup for the week of April 14, 2025

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If the courts are ICE's own, this emphasizes rather than undercuts the legal catch-22 characterization. Then this is not an issue of lack of authorities or fundamental human rights, but merely misfiled paperwork. If the issue is merely misfiled paperwork, then it may be a fuckup but hardly the most egregious or the most damaging of the last half decade, or even the last half year.

Note- I do buy into to the Court's position on the process issues. I am speaking instead on the basis of the political reaction.

Note- I do buy into to the Court's position on the process issues. I am speaking instead on the basis of the political reaction.

The political reaction is, of course, devoid of nuance. However, as was pointed out in many replies to the top level commenter, Trump and Bukele refusing to remedy the problem, despite it being very easy to do so, sets a genuinely dangerous precedent.

The district court is ignoring the SCOTUS ruling so I don’t see the problem.

In what way? Source?

My source is the opinion. If you read the SCOTUS opinion closely they didn’t say the ruling required removal to the US; instead they said facilitate removal from ES and then treat the case as if he was deported to that specific country. They then said she needed to carefully draw the ruling to not be over road or transgress Art II. It screamed “write a more narrow order.”

The district judge just said yolo I was proven correct. That isn’t true.

The district judge just said yolo I was proven correct.

To what are you referring?

Here's what the SCOTUS opinion said, emphasis mine:

The rest of the District Court’s order remains in effect but requires clarification on remand. 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.

Kind of vague, right? Maybe the SCOTUS meant the Government should only facilitate the release of Abrego Garcia, not to facilitate his return.

However, this was the wording of the original district court order that the SCOTUS deemed to be proper in the "facilitate" sense:

Defendants are hereby ORDERED to facilitate and effectuate the return of Plaintiff Kilmar Armanda Abrego Garcia to the United States [...]

It seems like the SCOTUS decision basically said the order to "facilitate" was proper, but the "effectuate" part needs to be clarified.

Now, the new order from the district court no longer talks about effectuate, but instead focuses solely on the facilitate part, namely:

Accordingly, it is hereby ORDERED that beginning April 12, 2025, and continuing each day thereafter until further order of the Court, Defendants shall file daily, on or before 5:00 PM ET, a declaration made by an individual with personal knowledge as to any information regarding: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate his immediate return to the United States; (3) what additional steps Defendants will take, and when, to facilitate his return.

Granted, the SCOTUS ruling was vague, probably intentionally so for political reasons and to get all 9 justices onboard, but the district court did not pull this interpretation out of its ass, and it's not directly opposing the SCOTUS.

I think there are two key differences. First the SCOTUS opinion says facilitate Garcia’s release from ES. The original ruling said facilitate and effectuate return to the US.

It is very interesting that people obsessed with language would leave off the phrase “return to the US.” If they were reading two statutes and one said “return to the US” and the other didn’t, they’d clearly conclude — all other things equal — that there was an important difference.

But it goes beyond that! Read the next part of the opinion. The SCOTUS says the judge needs to “clarify” the order as it might exceed her authority and she needs to have deference to Art II power.

Why would the order need to be clarified if it is hunky dory? SCOTUS split the baby. It is saying yes the admin improperly removed Garcia to ES but it is also telling the district judge to back off a bit that she is going too far.

The order needed to be clarified with respect to the "effectuate" part, but it seems they upheld the "facilitate" part. The administration had the same interpretation. At 11 seconds, the WH press secretary said:

The Supreme Court made their ruling last night very clear um that it's the administration's responsibility to facilitate the return not to effectuate the return

If you don't agree with this interpretation, that's fine, but it's disingenuous to frame it as the district court rebelling against SCOTUS when it is using the same interpretation as the White House.

Setting the side the question of how this fiasco, itself, affected his safety in El Salvador, I don't see a procedural problem with returning him to the USA, for the purposes of the "Article III" District Court investigating ICE compliance with court orders, followed by ICE having its "Administrative" immigration court reassess Garcia's original claim of threats to him in El Salvador and, if they no longer applied, re-deporting him. Bringing him back, so that ICE could follow the correct process to re-deport him would be embarrassing to ICE, but it's their fuckup, so...

Bringing him back, so that ICE could follow the correct process to re-deport him would be embarrassing to ICE

Seems more embarrassing to your faction. "Look at this pointless waste of time and resources that we had to do because Other Team only cares about abusing the rules to help illegal alien gang members."

Do you really think this would generally serve to increase respect for norms around due process?

Sure, but he's not under U.S. jurisdiction. I don't see that we have any obligation to bust him out of prison over the objection of El Salvador.

Inasmuch as El Salvador is acting as an agent of the USA's Executive branch, they should be willing to release him (were Trump and Bukele acting in good faith). It's not as though he was released as a free man, then arrested by local police for unrelated reasons.

Inasmuch as El Salvador is acting as an agent of the USA's Executive branch,

It is not. El Salvador is a sovereign country, mate, not a Yankee colony.

Is or isn't El Salvador being paid by the US government to imprison non-El Savadorians [Edit: not] accused (never mind convicted) of crime in El Salvador? Garcia happens to be El Salvadorian and Bukele now says he is self-motivated to imprison him, but ICE sent him to an El Salvadorian prison because ICE wanted to deport him, not because El Salvador requested his extradition.

Is or isn't El Salvador being paid by the US government to imprison non-El Savadorians accused (never mind convicted) of crime in El Salvador?

Neither answer makes the relationship between the US government and the El Salvadorian government into an agent relationship subject to judicial or executive directions from the United States.

Garcia happens to be El Salvadorian

This is not a matter of happenstance- this is a critical attribute as to the nature of the legal issue. Were Garcia a different citizenship- particularly American citizen- the nature of both American national and international law would be substantially different.

not because El Salvador requested his extradition.

El Salvador does not have to have requested his extradition to have a sovereign right to apply sovereign jurisdiction over an El Salvadorian citizen on Salvadorian sovereign territory.

Neither answer makes the relationship between the US government and the El Salvadorian government into an agent relationship subject to judicial or executive directions from the United States.

What is your preferred term to describe El Salvador's role "imprisoning non-Salvadorians not accused of any crime in El Salvador, at the request of and and with payment from the USA?" Does "agent" categorically not apply, or is the disagreement in the question of the extent to which it's "subject to judicial or executive directions from the United States?" It's probably reasonable to assume the Trump administration didn't include subjecting El Salvador to judicial directions in their contract, but if El Salvador isn't subject to executive directions, how do you think prisoner transfers occur?

The crux of the controversy, to me, is that if the arrangement had been entered into by "normal" politicians acting in good faith, the problem could easily be fixed, albeit at the cost of embarrassing the USA; however, because the arrangement is the product of a Trump administration that seems to be trying to maximize executive power and minimize judicial oversight and Bukele, who is trying to be "The World's Coolest Dictator," they won't do what's within their power to fix the problem.

What is your preferred term to describe El Salvador's role "imprisoning non-Salvadorians not accused of any crime in El Salvador, at the request of and and with payment from the USA?"

That might indeed be a circumstance where there is a clear contractual agreement with an obvious consideration. But that is not what has happened here: the prisoner is a Salvadoran national with no residency right in the U.S., in El Salvador. El Salvador has the right to prosecute him regardless of our opinion, so they are not clearly doing anything they couldn't or wouldn't do on their own.

I guess if you stretched it you could model this as El Salvador kidnapping someone on US soil with the complicity of the entire executive branch. But even when those kinds of things happen, there rarely is any remedy besides diplomacy or war. Neither of which the courts have power to enact.

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