Returning Kilmar Abrego Garcia

Ray Brescia, professor of law, Albany Law School -  The U.S. government could pressure the Salvadoran government in any number of ways, like it has other nations and institutions.

The U.S. pays El Salvador to detain deported migrants like Abrego Garcia. The administration could threaten to cut those funds or suspend future transfers unless he is returned. It could increase tariffs. It could assert the power to increase tariffs on other countries that do business with El Salvador. It could cut foreign aid to the country. Indeed, the U.S. government could pressure the Salvadoran government in any number of ways, like it has other nations and institutions. If it even hinted that it might consider any of these tactics, Abrego Garcia would be on the next flight home. That it refused to even try speaks volumes.

In the long run, as at least some members of the court recognize, any judicial ruling short of ordering the Trump administration to secure the return of Abrego Garcia will simply encourage the federal government to deport individuals — noncitizens and citizens alike — and place them in the hands of a foreign power as quickly as possible, putting them out of the supposed reach of the law and the Constitution. In a statement appended to the court’s order, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson warned of this possibility: “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.”

For now, the Supreme Court did not say exactly how the Trump administration should comply with its orders, but the justices at least did what they had to do in this setting: declare these actions illegal. If the Trump administration does not move to bring Abrego Garcia home, it will only raise the stakes. The courts should not tolerate the White House’s feigned powerlessness, especially when it has tried to stretch the bounds of its own power in so many other contexts.