After the US Supreme Court said that the Trump administration needed to facilitate Kilmar Ábrego García’s release from a prison in El Salvador, they started, as predicted, playing word games to not do anything, arguing that ‘facilitate’ only meant that if he should turn up at the US border, they would let him in but that they need do nothing more. They had earlier admitted that sending him had been a mistake but said that since he was now in the custody of El Salvador there was nothing that they could do.

The president of El Salvador came to the White House and he and Trump gave a joint press conference where they yucked it up and seemed to find it highly amusing that an innocent man is now in a foreign prison separated from his family here, and has been reportedly traumatized by the experience. It was disgusting to see how little regard they had for the fate of an innocent man.

The case went before a three-judge panel from the 4th U.S. Circuit Court of Appeals and they blasted this line of reasoning in a unanimous opinion, saying that the word ‘facilitate’ did not allow the government to do nothing

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
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The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It 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.”… “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. …(“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art.
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“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood,
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The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning.

The opinion then gets to the heart of the underlying issue, which is the proper relationship between the executive and judicial branches of government. They began by reminding us that president Eisenhower did not agree with the 1954 landmark decision by the Supreme Court in Brown v. Topeka Board of Education that public schools should be desegregated with all deliberate speed. But he felt it was his duty to enforce the ruling, sending in federal troops to escort nine Black students into a high school in Little Rock, Arkansas, in 1957, in the face of opposition by the Arkansas governor and ugly, angry white mobs,.

On May 17, 1954, the U.S. Supreme Court ruled in Brown vs. Topeka Board of Education that segregated schools are “inherently unequal.” In September 1957, as a result of that ruling, nine African-American students enrolled at Central High School in Little Rock, Arkansas. The ensuing struggle between segregationists and integrationists, the State of Arkansas and the federal government, President Dwight D. Eisenhower and Arkansas Governor Orval Faubus, has become known in modern American history as the “Little Rock Crisis.” The crisis gained world-wide attention. When Governor Faubus ordered the Arkansas National Guard to surround Central High School to keep the nine students from entering the school, President Eisenhower ordered the 101st Airborne Division into Little Rock to insure the safety of the “Little Rock Nine” and that the rulings of the Supreme Court were upheld.

The justices went on:

This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Indeed, in our late Executive’s own words,“[u]nless the President did so, anarchy would result.”
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The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.
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Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Unfortunately, I am not as sanguine as these justices that the Trump perceives “the rule of law as vital to the American ethos”. If he did, it would have been easy for them to get Abrego Garcia back since they had already conceded that he was sent in error to El Salvador. There was no way that the government in that country, or indeed any country that was not actively hostile to the US, would refuse a request to return someone who had not been charged with a crime in either country and was sent there by mistake. The fact that the Trump gang did not do something so simple shows that they see the law and the courts as impediments to them doing as they wish and will demean and disregard any judge, court, or opinion that tries to thwart them.

Trump seems to be in an advanced stage of megalomania where he thinks he has dominion over everything. The Trump gang will undoubtedly appeal this case back to the Supreme Court. That body helped greatly in creating this lawless monster and now must find a way to avoid being seen as utterly craven to him.