Between the non-responsive, if downright moronic, updates tendered by the government as to the status of Kilmar Armando Abrego Garcia, and the show pony press conference with peculiarly attired Salvadorean President Nayib Bukele, Trump has taken his stand.
The message from the meeting was clear: Neither Mr. Trump nor Mr. Bukele had any intention of returning Mr. Abrego Garcia, even though the Supreme Court has ruled that he should come back to the United States. The case has come to symbolize Mr. Trump’s defiance of the courts and his willingness to deport people without due process.
The question posed to Bukele, whether he will “return him” was the wrong question.** The question that should have been asked is whether he would turn Abrego Garcia over to the custody of the United States if Trump asked. Then again, poorly framed question aside, Bukele’s response was an SNL cold open script. Little Marco followed it up with stunningly simplistic nonsense that he certainly knows to be false, but passes for civics in this Oval Office.
But what about the courts? Trump isn’t selling his stance to the faithful as defiance, with Stephen Miller pretending that Trump won before the Supreme Court 9-0.
In an Oval Office photo-op with El Salvador’s President Nayib Bukele on Monday, Trump and Miller — along with Attorney General Pam Bondi — continued to pretend that the administration won at the Supreme Court, with both agreeing that the decision was 9-0 “in our favor.” Miller claimed that the high court found “no district court has the power to compel the foreign policy function of the United States,” while Bondi claimed that the U.S. only had to worry about bringing Abrego Garcia back if El Salvador released him first.
Miller may be venal, but he’s hardly stupid. The jury is still out on Bondi. But the point is clear, that Trump’s position is that the Supreme Court’s equivocal decision failed to support Judge Paula Xinis, and that it left him enough room to pretend that he’s not defying the judge, and creating a constitutional crisis, by refusing to do anything to bring Abrego Garcia back to the United States.
Judge Xinis is in the awkward position now of either acquiescing to the administration’s refusal to abide by her orders or taking action that would bring the crisis to the surface. She could order a hearing, requiring senior officials, perhaps even the president, to testify as to their lack of compliance with her orders, which would almost certainly be refused. She could hold someone in contempt, from the lowly AUSA in the courtroom to a cabinet secretary, which would require that someone under the auspices of the Executive physically take action. Or she could let the administration have its way and pull back from the edge, leaving Abrego Garcia in prison, likely for life, with no hope.
Trump has made the dubious claim that he would comply with a decision of the Supreme Court, because he claims he “respects” it, meaning that he believes he owns it, but not the order of some lowly district court judge.
“If the Supreme Court said bring somebody back, I would do that,” Trump said. “I respect the Supreme Court.”
Of course, if the Supreme Court actually ordered him to effectuate the return of Abrego Garcia, whether he would do so remains a mystery. Trump says a lot of things that he fails to do. But the point is that while the Supreme Court did, plainly, order Trump to “facilitate” Abrego Garcia’s return, its equivocal language about effectuating the return gave the administration a crack to exploit in its refusal to comply. From the perspective of Miller, this was all the room he needed to claim victory.
As the matter is back before the court, this time with the presser before it including Bukele’s nonsensical answer that he can’t “smuggle a terrorist” into the United States and Trump’s bobble-headed approval, what’s left for Judge Xinis to do? What order should she make in light of the near-certainty that Trump will fail to comply in this “battle of wills” between the unitary executive and the coequal judicial branch of government?
The Supreme Court could have avoided this confrontation had it answered its own question as to what was required of the president rather than kick the can back to Xinis. It did not. This may well be Chief Justice Roberts’ attempt to protect the institutional integrity of the Supreme Court by not issuing a decision that the president would defy, but it has long been clear that the constitutional crisis arising from Trump’s refusal to obey the orders of the court would ultimately bring the crisis to a head no matter what.
Was the Supreme Court wrong to give Trump a crack to weasel through in the vain hope that maybe, just maybe, he wouldn’t defy the court? What’s Judge Xinis to do now that the Supreme Court has hung her out to dry? If we’re doomed to a constitutional crisis no matter what, is it better that the judiciary pretend it’s not a fait accompli in the hope that Trump will somehow come to his senses and not blow up the Constitution, or should it have backed its judge and not given Trump the opportunity to pretend he’s not telling Judge Xinis “fuck you”?
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**By posing the question to Bukele of whether he will “return” Abrego Garcia, the media failed to address the nuance upon which Trump relies. The better questions would have been directed to Trump:
President Trump, have you asked President Bukele for the release of Abrego Garcia into American custody? If so, did President Bukele refuse? If not, why not?
Unfortunately, the journalists allowed into presser failed to ask these questions.