Turley: What in the World Is a ‘Writ of Facilitation’?

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Confused about the meaning of the unanimous Supreme Court order issued late yesterday? I certainly wonder what an order to “facilitate” an action without “effectuating” it means. John Sexton seemed similarly nonplussed about it last night. 

So it comes with some sense of relief to discover that the demand to facilitate the return of a deported illegal immigrant has a constitutional law expert like Jonathan Turley scratching his head, too. What, he wonders, is a writ of “facilitation”?

Turley centers on the key part of the unsigned per curiam order, emphasis his:

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. 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. The order heretofore entered by THE CHIEF JUSTICE is vacated.

This looks like less of an order — at least directed to the Trump administration — and more of an ask. Technically, this order applies to the district court, which is directed to show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” It technically only binds the White House to give it the ol’ college try and to share what they’ve tried, but that isn’t much of an order.

Turley asks the obvious questions — and has no answers:

What is left is a legal pushmi-pullyu that seems to be going in both directions at once. What if the Trump Administration says that inquiries were made, but the matter has proven intractable or unresolvable? Crickets.

No one would seriously believe that, but what right does the district court have to manage the relations or communications with a foreign country?

What indeed? One has to wonder why the Supreme Court even bothered to send this back to the district court at all. This order leaves the judge with no real authority to force the government to do anything other than make request for repatriation of the deportee. If El Salvador refuses to return the man, then what? And for that matter, why not just address that order at this level instead? If any court has the standing to contend with the executive branch on foreign policy to any extent, it is the Supreme Court and not one of its inferior courts.

Small wonder that the dissenters on this order excoriated the court for punting. In a haste to make a point, they argue, the Trump administration rushed the deportee without any chance at even a habeas process to demonstrate a case against him. They also overrode an existing order, apparently, that was supposed to prevent his removal. One can understand why the full court made clear that even under the Alien Enemies Act, detainees have a right to habeas actions before removal from the country, just to make sure that “oversights” (the government’s term for what happened) do not occur. The government conceded that point in the appeals process, but only after the deportation of Kilmar Armando Abrego Garcia.

The problem, however, is that the colt has already escaped the barn, so to speak. If El Salvador doesn’t return Abrego Garcia on their own, the judiciary can’t do anything about it. It can’t order sanctions on El Salvador or a war to retrieve him. It can’t even intrude enough on foreign policy to penalize the administration for diplomatic failure to resolve Abrego Garcia. The court knows it, and that’s why it wants to send this back to the district court with all of the teeth removed from the issue.

However, the court does have a potential point of leverage here, and it might be trying to send a message sotto voce about looking for some honest cooperation. William Otis lands on this point in his analysis of both cases:

Now it’s true that the lower courts erred in directing the executive branch point-blank to “effectuate” Garcia’s return. The Supreme Court correctly smoothed that over, ruling that “the intended scope of the word ‘effectuate’ in the District Court’s order was unclear,” and should be construed to mean “facilitate.” That much seems obvious; it goes without saying to anyone with his head screwed on, liberal or conservative, that no court could order the President to, say, go to war if the receiving country balked at handing over the detainee it had in its jurisdiction simply as a result of the American government’s administrative error.

But the basic point remains. What on earth was the administration thinking when it argued that it had no obligation to make at least some sort of serious attempt to correct its own mistake? And to push this bizarre point with an over-the-top argument that for the judicial branch to require this was to “license district courts to seize control over foreign relations [and] treat the Executive Branch as a subordinate diplomat”?

Tip to DOJ: If you don’t want to lose 9-0, don’t go over the cliff in your language when it was your own mistake that caused the problem to begin with.* This is true in any event, but especially true where, as here, you’ll have lots more deportation cases before the same Court.

Otis argues that the administration won the earlier case by reasonably conceding the obvious point on access to habeas, and ‘lost’ this case by obstinately refusing to do anything to repair their own errors with Abrego Garcia. This case isn’t really a loss since it doesn’t require much of the administration, but this isn’t the last case that the Supreme Court will hear on Donald Trump’s policies either. This order and its plea to do something to correct their error is likely a test to see how much this court can rely on the administration’s good faith, with repercussions in later cases to come if the Supreme Court decides that it cannot.

It might be worth springing Abrego Garcia and going through a habeas action on his return to build that kind of credibility. And that may be exactly what the Supreme Court means with its “writ of facilitation.”