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The Supreme Court Just Wants Trump to Break the Law the Right Way - Jay Willis
Balls and Strikes SubstackOn Thursday, 26 days after the Trump administration shipped Kilmar Armando Abrego Garcia, a sheet metal worker in Maryland, to a notorious Salvadoran megaprison due to what the White House calls an “administrative error,” the Supreme Court at last decided to intervene. In a three-paragraph, unsigned opinion with no noted dissents, the justices mostly upheld a district court order requiring the Trump administration to retrieve Abrego Garcia from El Salvador, and to thereafter “ensure” that his case “is handled as it would have been had he not been improperly sent” there in the first place.
Already, the Trump administration has resumed its fight to banish Abrego Garcia, a 29-year-old father with a legally protected immigration status and no criminal record, to some country other than this one. But for now, at least, the Fifth Amendment’s guarantee of due process still means that the government can’t black-bag you, accidentally (or “accidentally”) send you to a gulag from which no one has ever been released, and then claim that the Constitution unfortunately renders federal courts powerless to do anything about it.
The opinion did contain an asterisk: Although the justices left in place Judge Paula Xinis’s order that the Trump administration “facilitate” Abrego Garcia’s return, they expressed trepidation about her use of the word “effectuate,” which, they said, “may exceed” her authority. The opinion thus directed Xinis to “clarify” this aspect of her order on remand, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
To understand what’s going on in these few sentences, you have to place yourself in the shoes of the most tedious law professor you know. “Facilitate” generally refers to making something easier or more likely, and often connotes good-faith effort. “Effectuate,” on the other hand, usually implies the accomplishment of a specific result. If you will permit me a basketball analogy, a good point guard “facilitates” the team’s offensive attack, but only if the possession ends in a bucket would we say that the point guard “effectuated” the goal of scoring points.
Already, the Trump administration has resumed its fight to banish Abrego Garcia, a 29-year-old father with a legally protected immigration status and no criminal record, to some country other than this one. But for now, at least, the Fifth Amendment’s guarantee of due process still means that the government can’t black-bag you, accidentally (or “accidentally”) send you to a gulag from which no one has ever been released, and then claim that the Constitution unfortunately renders federal courts powerless to do anything about it.
The opinion did contain an asterisk: Although the justices left in place Judge Paula Xinis’s order that the Trump administration “facilitate” Abrego Garcia’s return, they expressed trepidation about her use of the word “effectuate,” which, they said, “may exceed” her authority. The opinion thus directed Xinis to “clarify” this aspect of her order on remand, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
To understand what’s going on in these few sentences, you have to place yourself in the shoes of the most tedious law professor you know. “Facilitate” generally refers to making something easier or more likely, and often connotes good-faith effort. “Effectuate,” on the other hand, usually implies the accomplishment of a specific result. If you will permit me a basketball analogy, a good point guard “facilitates” the team’s offensive attack, but only if the possession ends in a bucket would we say that the point guard “effectuated” the goal of scoring points.
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