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The administration was ordered to “facilitate” his return. That’s different.
It’s unclear why SCOTUS should be able to order the president to take a citizen of El Salvador, who is currently residing in El Salvador, and bring him to the US. What if El Salvador just doesn’t want to give him up? Given these facts, it’s reasonable to read “facilitate” as “facilitate only to the extent possible”.
Even SCOTUS has limits on their powers. I don’t think we should expect them to be able to order the president to bomb another country, for example. Their power diminishes rapidly outside of US borders.
This is fair, but Trump has absolutely not met even this lower bar. He hasn't even asked. What 'facilitation' has he attempted?
Yeah, I would struggle to understand how 'facilitate' doesn't mean make a diplomatic request. No need to send in a SEAL team if they're told no.
But it also seems so strange to request an extradition? of an El Salvadorean from El Salvador into ICE custody.
That in itself would be a pretty grave intrusion into the President's authority to conduct foreign diplomacy. If that is permissible, it would be a short distance to e.g., court-ordered economic sanctions or court-ordered economic aid.
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Is there any evidence that El Salvador wanted to imprison this citizen for reasons other than US say-so? I'm not sure that's even been alleged.
...are we ignoring El Salvadorian President Bukele's extremely well documented inclination to imprison known and even suspected gang members, which occurred despite US say-so?
Or Bukele's comments last week?
Trump could've just asked Bukele to say "I won't let you take gang members back, of course" and then Trump would've said "oh well". Instead, though, Bukele said "I can't smuggle a gang member back into the US", implying Trump's stance stance was not allowing him to come back.
Is this a format the judge would have accepted as 'facilitation'? If not, why does it matter as a proposed alternative?
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"El Salvador likes to imprison gang members" just brings us back to the question "Did El Salvador have independent evidence of his gang status or is that the result of El Salvador taking the USA's word on the matter?"
Which is a separate question from 'wanted to imprison this citizen for reasons other than US say-so.'
'US say-so' implies the US wants the man imprisoned. It is agnostic on the reason why.
'This man is a gang member' is a motive that can apply regardless of US desired results. It is agnostic as to the source of the information.
The gang affiliation is also a matter of US record that predates the current Trump administration's deportation push. There's no allegation I am aware of that it was invited in the last three months since Trump's inauguration.
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For anyone else just reading this topic for the first time- the lack of definition of what 'facilitate' entails was the crux of last week's discussion thread on this topic.
If 'facilitate' is used in the sense of 'make easier,' then no change in the person's actual location status is required. 'Facilitate' does not mean 'achieve.'
If 'facilitate' is used to demand a result, this becomes a foreign policy requirement, and especially an international sovereignty conflict, which creates a constitutional issue against the court demanding such a result.
As Prima notes, the Supreme Court did not order a result. The courts that have denied 'make easier' efforts as sufficient facilitation are lower courts. Tthe Supreme Court has not specifically weighed in on their ability to demand a result versus an effort.
Yeah the exact meaning here is really nuanced in a way that most people struggle with and it's not fully fleshed out yet either. Courts are not completely blind, there is flexibility for basic human reasoning and interpretation built into them but they are also majorly concerned with procedure.
A (highly simplified) way to explain what will happen is that the courts essentially go "Ok Trump show us what steps you've taken to help to facilitate his return and what barriers prevent you from achieving that goal", the Trump admin responds "We've done X, Y, Z, and have A, B, C barriers", the judges use their sense to determine how serious that response is and if they appear to be acting in good intentions to follow the order and rule accordingly.
As an example, let's say someone (idk John) has a restraining order on him for domestic violence and he has a stay away provision of 100 yards from Jane. However unknown to John, him and Jane both shop at the same grocery store. This happens sometimes and the restraining order typically accounts for it. As long as John takes action to leave immediately and not engage (that includes not finishing his shopping/pumping gas/whatever) then normally a judge wouldn't really punish for that, they know mistakes happen.
However let's say the court received legally admissable evidence of phone records where John messaged his friend Joe "Hah, I just saw Jane at the grocery store. I think I'll keep going there and maybe she'll see me and freak". The judge can take that into consideration and say "John, you violated your order. This was not incidental, you knew it would happen and continued to shop there for that reason".
Now not all evidence is so explicit as John admitting to it himself in text. It could be just testimony from Joe, it could be certain weird actions John took like always hanging around the store on the days and times Jane normally went shopping, whatever. Or maybe John didn't leave immediately and even worse went up to Jane to talk, which is now breaching the order with intent. Quite a few people end up violating restraining orders (to them "unfairly") because an accidental encounter was turned into an intentional breach by their choice to not disengage and make distance. Whatever it is, the judges take context into account.
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This is currently a moot point given that the Trump administration hasn't put in any effort whatsoever. If he asks Bukele to send him back and he says no, then we can move to the question of whether that is sufficient attempt at 'facilitation'.
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