The Trump administration has distorted the Court’s words to inflate the significance of the case.

T he Trump administration is stonewalling the judge who ordered it to facilitate the return to the United States of the alien the administration illegally deported to El Salvador and lodged in a notorious prison there, the Terrorism Confinement Center (CECOT). This, even though the Supreme Court last week unanimously upheld the order — as had a three-judge panel of the Fourth Circuit Court of Appeals a few days earlier. (See my posts on these developments here, here, here, and here.)

The alien, Kilmar Armando Abrego Garcia, is now heading into his second month of confinement at CECOT, the brutality and overcrowding of which have been documented by the State Department and in separate proceedings involving hundreds of Venezuelan aliens whom the Trump administration also deported to El Salvador with no due process. (In similar unanimity last week, the Supreme Court ruled that those Venezuelans, too, are entitled to due process.)

The Venezuelans were lawlessly deported to San Salvador on March 15 aboard three flights, one of which included Abrego Garcia, who is a Salvadoran national. In his case, there is a 2019 federal immigration court order prohibiting his repatriation to El Salvador. That’s because the immigration judge credited his fear-of-persecution claim. Regardless of whether one believes his story (I find it self-serving and unpersuasive), the judge’s finding still stands because the Justice Department in Trump’s first term failed to refute it or appeal it, and Attorney General Pamela Bondi, who leads the DOJ in Trump’s second term, failed to take available action to reverse it. (The immigration court is a component of the DOJ, not an independent judicial court.) As has become habitual, the Trump DOJ decided it could skip the law’s due process mandates and just expel Abrego Garcia since, as Vice President Vance puts it, “We can’t just ignore the president’s desires.”

To cut to the chase, the Trump administration is stonewalling Judge Paula Xinis, the Obama appointee to the Maryland federal district court who is presiding over Abrego Garcia’s case, by seizing on what is largely a semantic diversion in the Supreme Court’s short opinion — the difference between the words facilitate and effectuate — which the Court’s conservative justices appear to have offered as a face-saving off-ramp to the president. (The Court’s three progressive justices, in a blistering opinion by Justice Sonia Sotomayor, did not join in the semantic exercise.) Rather than gracefully take the off-ramp, the Trump administration has characteristically distorted the Court’s words, endeavoring to inflate the case into a matter of abstract constitutional principle — asking, Who runs American foreign policy, the president or a district court judge?

In reality, nothing so portentous is at stake. I’ll deal in a separate post with the constitutional abstraction. Here, I want to explain why this is a simple dispute over the terms of a custody cooperation agreement — a bailment arrangement in which, though physically in a Salvadoran prison, Abrego Garcia remains in the constructive custody of our federal government.

Judge Xinis (and the higher courts, if it comes to that), should be forcing the Trump administration to disclose in full the parameters of the agreement it made with President Nayib Bukele’s regime in El Salvador to detain U.S. prisoners in CECOT. That would elucidate what needs to be done to facilitate Abrego Garcia’s return. It would also be consistent with the Supreme Court’s unambiguous directive that the administration must “be prepared to share what it can concerning the steps it has taken and the prospect of further steps” to obtain Abrego Garcia’s release from Salvadoran custody so he can be returned to the United States for further legal proceedings on his potential removal.

Contrary to the Trump DOJ’s contention, the Supreme Court did not make the administration’s compliance contingent on Judge Xinis’s clarifying what she meant by ordering the government to “effectuate” Abrego Garcia’s release. This is a smoke screen. As I’ll address in the subsequent post, there is no need for clarification: The Supreme Court and Fourth Circuit opinions make clear that, to the extent Judge Xinis used the word effectuate, the higher courts have refined it into the less imperious facilitate.

In this post, let’s get to why, beneath the wordplay and airy separation-of-powers talk, this is a simple case.

When I was a federal prosecutor in New York, the government had (and no doubt still has) various agreements with New York State that allowed the feds to house arrestees and other federal prisoners in select state and municipal detention facilities. There were various good reasons for doing this — e.g., there are fewer federal facilities, occasionally they got overcrowded, and it was sometimes easier to transport prisoners to federal court proceedings from state jails and prisons.

Now, El Salvador is a sovereign power, separate from the United States government, with which the American presidential administration conducts business — we call that diplomacy. Similarly, the State of New York is a sovereign power, separate from the United States government, with which the American presidential administration conducts business — we call that federalism.

One of the things the executives of sovereign governments control is the confinement of prisoners — this is not a judicial or legislative function. Ergo, a federal judge would have no authority to order the federal government to negotiate an agreement with the State of New York, or the government of El Salvador, regarding the custody or prisoners. That’s up to the executive officials of the sovereign governments: They can make an agreement and decide its terms, or not make one at all. A federal judge has nothing to say about it as a matter of governance; the court gets involved only to the extent any agreement affects the rights of a detainee whose case is properly before a judge.

Let’s stick with New York State for a moment. If a case involving a federal prisoner is properly before a judge, then it makes no difference whether the federal government is detaining the prisoner in a federal facility or state facility. As far as the court is concerned, the prisoner is in federal custody — regardless of whether that custody is direct (in a federal prison) or indirect (what I’ve referred to as “constructive” federal custody, under an agreement in which another sovereign lends the feds detention resources).

To be more concrete, let’s say that I, a federal prosecutor, had a defendant arrested on a Sunday night, and that the federal agents lodged the prisoner in a state jail pursuant to a custody agreement between the sovereign governments. I would still be obligated to produce the prisoner in federal court on Monday morning for the proceedings mandated by federal law. It would be absurd and lawless of me to tell the federal judge that the Justice Department could not produce the prisoner because he was now in state custody, or that the federal judge had no jurisdiction to order that the state government release the prisoner so he could be brought to court.

Very simple: The court cannot force the feds and a sovereign to make or not make an agreement to cooperate on custody matters. But once a sovereign has made such an agreement with the feds, that sovereign becomes, for these purposes, a mere extension of the federal government.

In effect, the other sovereign is a bailee of the federal government’s prisoners. The bailment arrangement does not and cannot constitutionally absolve the American presidential administration of its obligations to comply with federal law. And as long as the Trump DOJ is in the mood to expound pedantically on the separation of powers, the bailment agreement does not and cannot enable the executive branch to obstruct the judicial branch’s obligation to protect the due process rights of a prisoner who is properly before the court. (On that score, the Trump DOJ has admitted that Abrego Garcia has a case because the administration illegally transferred him to El Salvador in violation of the 2019 order prohibiting his removal there.)

There is no reason to believe that things are different in principle because the sovereign with which the Trump administration has cut a custody cooperation deal is another country rather than a U.S. state. To be clear, I am not saying there are no differences at all between a bailment arrangement with a country and one with a state. It is foolish for the United States to make an agreement for detainees in judicial proceedings to be held overseas because: (a) that makes it more logistically difficult and costly, not more convenient, to produce prisoners in court as needed for the pending cases; and (b) the Salvadoran prison at issue raises concerns about our government’s obligations under the Eighth Amendment, various statutes and regulations regarding the humane treatment of prisoners, and the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (a 1984 multilateral treaty that the United States joined a decade later, during the Clinton era).

In saying there are no differences in principle, I simply mean that the Trump administration cannot eviscerate prisoners’ rights, its own obligations, and the courts’ supervision of judicial proceedings by making a custody deal with another country and then disingenuously claiming that it cannot produce the affected prisoners because they are detained in the other country.

The administration is acting as if the agreement with El Salvador is now a state secret the terms of which it must withhold because their exposure would intrude on the president’s vaunted power over sensitive diplomatic matters. That’s laughable.

Secretary of State Marco Rubio trumpeted the agreement with El Salvador shortly after he was confirmed. And the Bukele regime can’t stop talking about it publicly, to the point that we have reporting on its terms: The United States paid $6 million to El Salvador, which agreed to hold about 300 prisoners — alleged to be members of two vicious international gangs that the administration has designated as foreign terrorist organizations: Tren de Aragua and Mara Salvatrucha (MS-13). (It contends, based on thin evidence, that Abrego Garcia is an MS-13 member.)

Significantly, El Salvador’s Ministry of Public Affairs asserted in a memorandum about the agreement with our State Department: “The Republic of El Salvador confirms it will house these individuals for one year, pending the United States’ decision on their long-term disposition” (emphasis added). It couldn’t be clearer: This is a temporary agreement under which the Trump administration maintains dominion and control over the fate of the prisoners.

This dispute before Judge Xinis is not about the separation of powers. It is about a simple bilateral agreement between sovereigns under circumstances in which agreements regarding custody cooperation are not uncommon (though they usually involve the feds and the states, not the feds and foreign regimes that do not follow American standards of prisoner treatment).

Under the known terms of the U.S.–El Salvador agreement, there appears to be no reason, other than its own stubbornness, that the Trump administration cannot obtain Abrego Garcia’s immediate transfer from the Salvadoran prison (where he remains constructively in U.S. custody) to a federal prison in the United States that would be convenient for producing Abrego Garcia at required federal court proceedings in the District of Maryland.