As usual in emergency-docket cases, the government won the fig leaf of having the Court declare that the lower court’s timelines were invalid.

The Supreme Court’s jurisdiction may be over “Cases” or “Controversies,” but if you’re looking to the Court for clear answers, it’s a lot easier to get them when the Court is presented with a clearly defined question of law. That is how most cases reach the Court’s normal docket, but it is often not how they appear on the emergency docket, when things arrive in a jumbled rush, the Court must move with a haste that undercuts its typical comparative advantage of scholarly deliberation, and the legal merits are often entangled in a thicket of procedural questions.

So it was with Monday’s ruling in Trump v. J.G.G. on the deportation to El Salvador of alleged Venezuelan Tren de Aragua gang members under the Alien Enemies Act (AEA), and so it was again with today’s ruling in Noem v. Abrego Garcia on the deportation (also to El Salvador) of Kilmar Abrego Garcia, an illegal Salvadoran immigrant whom the government alleges to be a member of the notorious MS-13 gang.

The J.G.G. decision was a clear, major victory for the Trump Administration and for its critics. What the Administration won, 5–4, was its argument that decisions about deportations, at least under the Alien Enemies Act, are not subject to flyspecking review under the Administrative Procedure Act (APA), but must be brought as habeas corpus petitions subject to the more limited judicial review provided by the AEA. That’s important not only because it keeps some of those decisions out of the especially hostile district court in D.C., but because courts have been using the APA’s “arbitrary and capricious” standard (often improperly) to basically declare Trump policies irrational and throw them out, substituting the policy views of judges for those of the executive branch on matters of immigration and foreign policy where they are at their strongest. By contrast, J.G.G. was also a big win for Trump critics because it affirmed, unanimously and without any serious argument to the contrary from Pam Bondi’s Justice Department, that deportations even under the AEA must still provide due process of law before a court. The process required may be far from what you’d get in, say, a criminal trial — but that’s as it should be. The rights of foreigners against deportation are much more limited. But, once inside the United States and within the jurisdiction of its laws, they are not nothing.

Abrego Garcia is a messier case. It’s messy because the government deported Abrego Garcia to the one country he could not legally be sent to. As Jack Crowe has detailed, the government tried to deport him six years ago based on him being illegally in the country, and in the process presented persuasive but hardly conclusive evidence of him being an MS-13 gang member. The immigration judge who heard the case ordered that he could not be sent back to El Salvador because he would be in danger from a different gang there — which, of course, may or may not be because of gang rivalries:

The immigration judge…was convinced enough by the word of the confidential informant to deny Garcia bond when he came before her in 2019. That’s not the same as a judicial finding of evidence of gang membership, much less a criminal conviction after a full trial, but it does mean that the only court to look closely into Garcia’s case thought there was substance to the charge that he was in MS-13.

Given it was merely a bond hearing, Garcia’s attorney was not entitled to cross-examine the officer who put forward the informant’s account and who attested that the informant had a reliable record. That officer, it should be noted, was later suspended for reasons apparently unrelated to the case.

Nothing in the Immigration Appeals Board’s subsequent decision to block his deportation to El Salvador suggests the authorities came to doubt Garcia’s membership in the gang. That decision was based on the danger to Garcia of being returned to his country of origin.

Because Abrego Garcia has no criminal record in the U.S. and has a wife and child here, the press has predictably downplayed this and tried to make him a poster boy for innocent people deported for no reason without due process; the Atlantic described him as a law-abiding “Maryland father.” Justice Sonia Sotomayor’s separate opinion today described him as “a husband and father without a criminal record,” sent to “a Salvadoran prison for no reason recognized by the law,” which elides the reasons why he was originally targeted for deportation in 2019. The critics elide as well the question of why it should take six years to get anywhere in his case.

Ultimately, the DOJ admitted that the government had committed an “administrative error” in sending Abrego Garcia to El Salvador while under a judicial order (albeit from an immigration judge, not an Article III court) against doing precisely that. Naturally, this was not a very legally strong position to take to the Supreme Court, and the government’s only real argument was that it couldn’t be ordered to get him back once he was in El Salvador. While there are indeed some serious questions about what power the courts have to force the executive branch to exert its foreign policy powers to get Abrego Garcia back from the Salvadoran government, it, again, is never a great day in court when your only argument to the bench is “oops.”

As usual in emergency-docket cases, the government won the fig leaf of having the Court declare that the lower court’s timelines were invalid by virtue of having been stayed by the Court while it heard the case. Something similar happened in the USAID case. Here’s what the Court said:

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. (Emphasis added.)

This amounts to telling the district judge to order the government to help the Salvadorans give back Abrego Garcia, without saying what happens if the Salvadoran government just says “no” (or, worse, says “oops, we can’t find him,” which is not unknown in El Salvador’s sprawling prison system). As with the order to Judge Amir Ali in the USAID case, the Court is politely telling the district judge that she’s over her skis and ought to be more careful with the judicial power. It’s clear that we are building to some more serious rebukes from this Court both to overweening district judges and to the Trump Administration’s habits of sloppiness and periodic efforts to evade judicial review. But for now, the Court is moving carefully to avoid the sort of overreaches that it finds all around it among the executive branch and the district courts – and to ensure that some forms of due process of law are available to keep straight the people who can lawfully be deported, and those who can’t.