The judiciary has options to keep pressing the Trump admin on Abrego Garcia’s case

On April 10th a unanimous Supreme Court left in place an order requiring the U.S. government to “facilitate” Kilmar Armando 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,” where he is being held in a notoriously brutal prison. Abrego Garcia, a Maryland father, was erroneously removed to El Salvador on March 15th despite a 2019 order from an immigration judge prohibiting his removal to that country. The Trump administration subsequently admitted that his removal was an “administrative error.”

It is unclear what, if anything, the Trump administration is doing to comply with the Supreme Court’s legal directive to “facilitate” Abrego Garcia’s release and return. But one thing is clear: complying with court orders is not optional. Although the executive branch has significant discretion in how to conduct its foreign policy and what levers it can choose to pull in its negotiations with any particular foreign country, in a democracy the government does not have discretion to simply ignore a court decision.

The judiciary is not without options to try to force the government to comply with its legitimate lawful orders, like the order left in place by a unanimous Supreme Court here.

The federal District Court that is overseeing Abrego Garcia’s case is already requiring the government to provide the Court with daily status reports of what the government is doing to comply with the court’s order. And on Tuesday April 15, after finding that the government “appear[ed] to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States,” the Court ordered “expedited discovery of the Government’s actions (or failure to act) to facilitate [Abrego Garcia’s] return to the United States.” The Court permitted up to 15 interrogatories and 15 requests for production of documents, and depositions of the officials who submitted declarations in this case: Joseph Mazzara (acting general counsel of the Department of Homeland Security), Evan Katz (assistant director of Immigration and Customs Enforcement’s Enforcement and Removal Operations), Michael Kozak (senior bureau official in the State Department’s Bureau of Western Hemisphere Affairs), and Robert Cerna (acting field office director of Immigration and Customs Enforcement’s Enforcement and Removal Operations ).

But there is more the Court can do. Here are some of the options at the Court’s disposal.

As a starting point, if this discovery is not sufficient to inform the Court of the government’s compliance, the Court may call for testimony from the declarants who submitted declarations in the government’s daily status reports. If these declarants don’t have the information the Court needs or aren’t forthcoming, it can call in their supervisors. And their supervisors. And their supervisors’ supervisors. And, if they refuse to give testimony, aren’t forthcoming or the testimony reveals that the government still has not complied with the Court’s order, it is within the Court’s power to hold contempt hearings. In a different immigration related case on April 16 a court found probable cause to hold Trump administration officials in criminal contempt for violating a mid-March court order halting the use of the Alien Enemies Act to remove alleged Venezuelan gang members.

To be clear, the Court should be hearing directly from the officials at the State Department and Department of Homeland Security who have the legal and institutional responsibility to negotiate with foreign governments, including El Salvador. But if those departments don’t cooperate, the Department of Justice–whose lawyers are officers of the Court, and represent the government–could be called before the Court and may be subject to contempt proceedings as well. Lawyers have a duty to be truthful to courts, and under the Maryland Rules of Professional Conduct are prohibited both from making false statements and from engaging in conduct involving dishonesty, fraud, deceit or misrepresentations. Those rules are designed so that judges are able to get the truthful information they need so they can exercise their constitutional role.

It is entirely possible that government lawyers and officials may try to invoke the state secrets doctrine in an effort to keep from sharing necessary information with the Court. But even if the state secrets doctrine prohibits disclosure of information to the plaintiffs, that is not the end of the inquiry. The Court still can respect the importance of that common law doctrine by requiring the government to submit a sealed status report or present evidence in camera, thereby allowing the judge to review evidence in private to determine if a revelation in open court should be allowed.

For potential noncompliance that requires an in-depth investigation, a court may consider appointing a special master under Rule 53 of the Federal Rules of Civil Procedure. Appointing a special master isn’t unprecedented, and, in fact, has been a useful tool in the context of contempt. In 2022, for example, an inmate died after the Bureau of Prisons (BOP) and the warden of a correctional facility failed to comply with the inmate’s release order. After the court was notified of the inmate’s death and “the disturbing circumstances of his release,” the court issued a show cause order and appointed a special master to develop the record, including “whether the BOP reasonably attempted to comply with” the court’s release order. Following the special master’s investigation, the court adopted the special master’s recommendation to impose sanctions on BOP and to hold BOP and the warden in civil contempt. Courts faced with the possible defiance of court orders, particularly in cases with extensive factual records, similarly may benefit from the appointment of a special master to assist the court with this investigatory function. And if the Court appoints a special master with high level security clearances, that could be a potential way to mitigate any attempt to withhold information from the Court based on the state secrets privilege.

If the government does not comply with the court order in Abrego Garcia’s case to facilitate his return, it sets a dangerous precedent where other litigants may feel emboldened not to comply in the future. Corporations could refuse to pay settlement fees to victims of toxic chemical spills. The government could stop Americans from exercising their First Amendment right to public protests despite a court order allowing protests to move forward. Pharmaceutical companies could refuse to take drugs off the market, like opioids which have ravaged American communities, despite a court telling them that they must. But courts are not powerless. They have tools that they can, and should, use because complying with court orders is a hallmark of democracy, and fundamental to the rule of law. Noncompliance is not an option.

Lauren Bingham, John Hill and Christie Wentworth contributed to this piece.