The Trump Administration is arguing that the Supreme Court did not mean what nine Justices unanimously ruled in the case of Kilmar Abrego Garcia, the Salvadoran man illegally sent to a Salvadoran prison because of what the Administration contends was an “administrative error.” On Thursday, the Court ordered the government to “ ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.” The government, in an insolent filing on Sunday evening, rewrote that instruction. “Facilitate” means only “taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here,” it argued. “Indeed, no other reading of ‘facilitate’ is tenable—or constitutional—here.”
Forget any effort to repair the Administration’s admitted mistake by seeking Abrego Garcia’s release from Salvadoran authorities—authorities who, according to news reports, are being paid to jail him and others shipped there by the United States. That, the government argued, would intrude on the President’s sole power to conduct foreign relations. So the government’s responsibility here is to, what, maybe issue Abrego Garcia a Global Entry card to cut the immigration line if he somehow turns up at a U.S. airport? This defiant position cannot stand—not if the rule of law is to survive.
The Court sought in its order to insure what it termed “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 questioned whether a lower court went too far in telling the Administration to “effectuate” his return, not merely “facilitate” it. Still, the Court added, “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” During ordinary times, this accommodation would reflect an appropriate respect for the constitutional separation of powers. In dealing with this Administration, with its maximalist conception of executive authority and its contemptuous attitude toward the judiciary, the Justices are being played for fools.
In the interplay between the courts and the executive branch, judges apply what is known as the “presumption of regularity.” Courts generally proceed on the assumption that government officials have acted properly. “The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties,” the Court ruled in a 1926 case.
But the presumption of regularity is not an imperative of ignorance or a rule mandating that judges be ostriches. The Trump Administration has, repeatedly and flagrantly, squandered its entitlement to the presumption. It has dismissed lower-court judges as pesky underlings whose orders can be disregarded. Now, with its escalating defiance in the case of Abrego Garcia, it is treating instructions from the Justices themselves with similar disrespect. The country is about to see whether the judiciary will insure that it suffers consequences.
The courts have to confront the Abrego Garcia mess for the simple reason that “the government screwed up here,” in the words of J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, one of the most respected conservative jurists in the nation. The Trump Administration describes Abrego Garcia, a twenty-nine-year-old father of three, as a “ranking member of the deadly MS-13 gang” and a “foreign terrorist” whose return would pose a threat to the public. The federal district-court judge hearing his case, Paula Xinis, said that the evidence of his gang membership consisted of “nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” The federal appeals court found that “Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life,” as a sheet-metal apprentice in Beltsville, Maryland.
It doesn’t matter who is right, because even the Trump Administration agrees that Abrego Garcia should never have been returned to El Salvador—where, an immigration judge had found, he faced threats from another gang, Barrio 18, that was extorting money from his family pupuseria. The Administration contends, instead, that its hands are tied; nothing can be done now that Abrego Garcia is being held by Salvadoran authorities.
In a hearing on Friday, the day after the Supreme Court ruling, Xinis could not extract basic information from the government lawyer, including about Abrego Garcia’s whereabouts. (The lawyer who had originally appeared before her, and acknowledged the government’s error, has been suspended for failing to follow instructions, along with his supervisor.) Xinis found that the government had failed to comply with her order, and instructed it to file daily reports about where Abrego Garcia was and what the government was doing to retrieve him. On Saturday, she received this grudging update: “Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador. He is alive and secure in that facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.” Nothing about what was being done to obtain his release.
President Trump followed with a Truth Social post on Saturday night. Trump, who was scheduled to meet with the Salvadoran President, Nayib Bukele, on Monday, wrote, “President Bukele has graciously accepted into his Nation’s custody some of the most violent alien enemies of the World and, in particular, the United States. These barbarians are now in the sole custody of El Salvador, a proud and sovereign Nation, and their future is up to President B and his Government.” So much for that order from the high court.
Sunday made matters even worse. An affidavit by Evan Katz, an assistant director at U.S. Immigration and Customs Enforcement, asserted that the government had “no updates”—and that, in any event, Katz said, Abrego Garcia would no longer be shielded from removal even if he were in the United States because Trump has declared MS-13 to be a foreign terrorist organization. This argument ignores the reality that numerous federal judges have now questioned whether there is actually evidence that Abrego Garcia was a gang member—something that, in a world of due process, he would have been able to argue had he not been snatched off the street and hustled onto a plane.
Monday saw Bukele in the Oval Office, where Attorney General Pam Bondi misstated the holding of the Supreme Court, asserting that the Justices had only said if El Salvador “wanted to return him, we would facilitate it, meaning provide a plane.” In her telling, and that of deputy White House chief of staff Stephen Miller, there was no acknowledgment of a mistake by the government here—although the Administration’s own Solicitor General informed the Supreme Court that Abrego Garcia’s removal was an error. Unsurprisingly, Bukele indicated no such desire: “How can I return him to the United States—I smuggle him into the United States . . . the question is preposterous.” The Trump Administration acts as though it has no obligation to ask Bukele for Abrego Garcia’s return, while Bukele pretends that he could not possibly suggest it. This is a convenient impasse, which satisfies everything but the interests of justice.
The government’s conduct in Abrego Garcia’s case is bad enough standing on its own. It is worse because it is part of a pattern of high-handed obstructionism. Consider the case challenging the Administration’s use of the Alien Enemies Act to send, also to El Salvador, hundreds of Venezuelan men it claimed were members of the Venezuelan gang Tren de Aragua. Trump signed in secret an executive order invoking the 1798 law, then put the alleged gang members onto planes bound for El Salvador before they could protest their removal. When lawyers sought emergency intervention before U.S. District Judge James Boasberg, a lawyer for the government proclaimed no knowledge of the flights that were taking off even as he appeared in court. When Boasberg instructed the lawyer that any flights in the air should be turned around—“this is something that you need to make sure is complied with immediately”—the government ignored him. (“Oopsie . . . Too late,” Bukele posted on X the next morning.) And when Boasberg later sought to obtain information about the flights and the defiance of his order, the government brazenly insisted that it was not bound by his verbal order, only a subsequent written one, and then went so far as to invoke the “state secrets” privilege. Boasberg is now considering whether to hold the Administration in contempt of court.
Even when this Administration obeys a court order, it does so reluctantly—indeed, contemptuously. Take how Bondi complied with an order, from U.S. District Judge John Bates, that she inform federal agencies about his suspension of Trump’s executive order against the law firm Jenner & Block. Bondi wrote of Bates, who was named to the bench 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 pen a letter to the head of every executive department and agency. Local district judges lack this authority, and the Supreme Court should swiftly constrain these judges’ blatant overstepping of the judicial power.” If that insubordination weren’t clear enough, Bondi added pointedly, “Of course, as noted in the court order, agencies are permitted to carry on their ordinary course of business which carries with it the authority to decide with whom to work.”
We have been here before, during the first Trump Presidency, when the Administration, at least at times, reaped from the courts the distrust that it had sowed. In 2019, Chief Justice John Roberts, joining with the liberal Justices to form a five-person majority, rejected the Administration’s disingenuous effort to add a question about citizenship to the census. The Administration’s stated rationale—that the question was necessary to help the Administration enforce the Voting Rights Act—“appears to have been contrived,” an apparently exasperated Roberts wrote. “Our review is deferential,” he added, “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 naïveté in the face of this Administration’s lawless behavior. It has earned the presumption of irregularity. ♦
