The Trump Administration contends that the Supreme Court did not intend what the nine Justices unanimously ruled regarding the case of Kilmar Abrego Garcia, a Salvadoran man illegally sent to a prison in El Salvador due to what the Administration claims was an “administrative error.” On Thursday, the Court directed the government to “ ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.” However, in a brazen filing on Sunday evening, the government reinterpreted that directive. It posited that “facilitate” simply means “taking all available steps to remove any domestic obstacles that would impede the alien’s ability to return here,” asserting that “no other interpretation of ‘facilitate’ is defensible—or constitutional—here.”
Forget any attempts to rectify the Administration’s acknowledged mistake by seeking Abrego Garcia’s release from Salvadoran authorities—authorities who, according to reports, are being compensated to detain him and others sent there by the United States. The government argues that intervening would encroach on the President’s exclusive authority to conduct foreign relations. So what is the government’s responsibility here? Perhaps to issue Abrego Garcia a Global Entry card to expedite his immigration process if he manages to appear at a U.S. airport? This willful defiance cannot persist if the rule of law is to endure.
The Court’s order aimed to ensure “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” By instructing the government to “facilitate” Abrego Garcia’s release, the Court raised questions about whether a lower court overstepped by directing the Administration to “effectuate” his return instead of simply “facilitating” it. Nevertheless, the Court added, “The Government should be prepared to share what it can regarding the steps it has taken and the prospects for further actions.” Under normal circumstances, this accommodation would reflect appropriate respect for the constitutional separation of powers. However, in dealing with this Administration, characterized by a far-reaching view of executive authority and a dismissive stance toward the judiciary, the Justices risk being taken for fools.
In the interaction between the courts and the executive branch, judges typically apply the “presumption of regularity.” Courts operate on the assumption that government officials have acted lawfully. “The presumption of regularity supports the official actions of public officers and, in the absence of clear evidence to the contrary, courts assume that they have properly executed their official duties,” the Court ruled in a 1926 case.
However, the presumption of regularity should not be a mandate for ignorance or a principle suggesting that judges should hide their heads in the sand. The Trump Administration has repeatedly and overtly squandered its entitlement to this presumption. It has dismissed lower-court judges as bothersome subordinates whose orders can be ignored. Now, with its escalating defiance in Abrego Garcia’s case, it is treating directives from the Justices themselves with comparable disregard. The nation is on the brink of seeing whether the judiciary will ensure accountability.
The courts must address the Abrego Garcia situation simply because “the government screwed up here,” as articulated by J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, one of the nation’s most respected conservative jurists. The Trump Administration characterizes Abrego Garcia, a 29-year-old father of three, as a “ranking member of the deadly MS-13 gang” and a “foreign terrorist” whose return could endanger public safety. However, the federal district court judge overseeing the case, Paula Xinis, noted that the evidence of his gang affiliation was “nothing more than his Chicago Bulls hat and hoodie, plus a vague, unverified claim from a confidential informant suggesting he belonged to MS-13’s ‘Western’ clique in New York—a location he has never resided in.” The federal appeals court found that “Abrego Garcia has no criminal history, in this country or anywhere else, and is a law-abiding family man employed as a sheet-metal apprentice in Beltsville, Maryland.”
It is irrelevant who is correct, as even the Trump Administration acknowledges that Abrego Garcia should never have been sent back to El Salvador—where, an immigration judge determined, he faced threats from another gang, Barrio 18, which was extorting his family’s pupuseria. The Administration, however, argues that it is powerless; nothing can be done now that Abrego Garcia is detained by Salvadoran authorities.
In a hearing on Friday, the day following the Supreme Court ruling, Judge Xinis could not obtain basic details from the government attorney, including Abrego Garcia’s whereabouts. (The attorney who initially appeared before her and admitted to the government’s mistake has been suspended for failing to comply with instructions, along with his supervisor.) Xinis determined that the government had not adhered to her order and mandated that it provide daily updates on Abrego Garcia’s location and the steps being taken for his retrieval. On Saturday, she received this begrudging update: “Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador. He is safe and secure at that facility. He is detained under the sovereign, domestic jurisdiction of El Salvador.” There was no mention of any efforts being made to secure his release.
President Trump followed with a post on Truth Social on Saturday night. Trump, scheduled to meet with Salvadoran President Nayib Bukele on Monday, wrote, “President Bukele has graciously accepted into his Nation’s custody some of the most violent alien enemies in the World and, in particular, the United States. These individuals are now in the exclusive custody of El Salvador, a proud and sovereign Nation, and their future is up to President Bukele and his Government.” So much for the order from the Supreme Court.
Sunday exacerbated the situation further. An affidavit from Evan Katz, an assistant director at U.S. Immigration and Customs Enforcement, claimed that the government had “no updates”—and that, in any case, Katz stated that Abrego Garcia would no longer be protected from removal even if he were in the United States because Trump has designated MS-13 as a foreign terrorist organization. This argument dismisses the fact that numerous federal judges have questioned whether there is any evidence supporting Abrego Garcia’s alleged gang membership—something that, in a system of due process, he could have challenged had he not been forcibly taken from the street and hurried onto a plane.
On Monday, Bukele was in the Oval Office, where Attorney General Pam Bondi incorrectly stated the Supreme Court’s determination, claiming that the Justices had merely indicated that if El Salvador “wanted to return him, we would facilitate it, which means providing a plane.” In her account, and that of deputy White House chief of staff Stephen Miller, there was no recognition of any government error—despite the Administration’s Solicitor General informing the Supreme Court that Abrego Garcia’s removal was a mistake. Unsurprisingly, Bukele displayed no such inclination: “How can I return him to the United States—I might as well smuggle him into the United States… the question is absurd.” The Trump Administration appears to believe it has no responsibility to request Bukele for Abrego Garcia’s return, while Bukele pretends that such a suggestion is impossible. This creates a convenient deadlock that prioritizes all but the pursuit of justice.
The government’s conduct in Abrego Garcia’s case is troubling enough on its own. It is further compounded by a pattern of high-handed obstructionism. Consider the case challenging the Administration’s employment of the Alien Enemies Act to deport hundreds of Venezuelan men, also to El Salvador, whom it labeled as members of the Venezuelan gang Tren de Aragua. Trump issued a secret executive order invoking the 1798 law and subsequently placed the alleged gang members onto flights bound for El Salvador before they could contest their expulsion. When attorneys sought emergency intervention from U.S. District Judge James Boasberg, a government lawyer claimed ignorance about the flights that were taking off while he stood in court. When Boasberg ordered the lawyer to ensure that any planes in the air were turned around—“this is something that needs to be complied with immediately”—the government disregarded him. (“Oopsie… Too late,” Bukele posted on X the following morning.) When Boasberg later sought clarification regarding the flights and the government’s defiance of his order, the administration shamelessly argued that it was not bound by his verbal directive, only by a subsequent written one, and even resorted to invoking the “state secrets” privilege. Boasberg is currently contemplating whether to hold the Administration in contempt of court.
Even when this Administration complies with a court order, it does so reluctantly—indeed, with disdain. Consider how Bondi followed an order from U.S. District Judge John Bates, instructing her to inform federal agencies about his suspension of Trump’s executive order against the law firm Jenner & Block. Bondi remarked about Bates, appointed by President George W. Bush, “On March 28, 2025, an unelected district court yet again invaded the policy-making and free speech prerogatives of the executive branch, including by requiring the Attorney General and the OMB director to draft a letter to the head of every executive department and agency. Local district judges lack this authority, and the Supreme Court should swiftly restrain these judges’ blatant overreach.” If that insubordination weren’t evident enough, Bondi pointedly added, “Of course, as stated in the court order, agencies are free to carry on their ordinary course of business, which includes deciding with whom to work.”
We have encountered similar situations before, during the first Trump Presidency, when the Administration, at times, faced the consequences of the mistrust it cultivated with the courts. In 2019, Chief Justice John Roberts joined with the liberal Justices to form a five-person majority, rejecting the Administration’s disingenuous attempt to add a citizenship question to the census. The Administration’s stated justification—that the question was necessary for enforcing the Voting Rights Act—“appears to have been contrived,” an evidently exasperated Roberts stated. “Our review is deferential,” he continued, “but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” No ordinary citizen, and certainly no federal judge, can afford to be naïve in the face of this Administration’s lawless behavior. It has forfeited the presumption of regularity. ♦
