“I’ve gotten nothing. I’ve gotten no real response, and no real legal justification for not answering,” she continued, adding that if the administration is not going to answer her questions “then justify why. That’s what we do in this house.”
There is nothing worse than a feeling of being unfacilitated, but how does the court measure good faith facilitation?
Garcia is an El Salvadorian citizen in an El Salvadorian prison. The refusal of El Salvador to send the accused MS-13 gang member back effectively ends the question on any return.
Many of us suspect that El Salvador would send back Garcia if asked, but how can a court measure the effort of an Administration in communications with a foreign country?
Judge Xinis is suggesting that she will be holding someone in contempt. However, this is a discussion occurring at the highest level. Would a formal request be enough?
Is Judge Xinis suggesting that the court can require punitive or coercive measures against a foreign country to facilitate a change in its position?
The fact is that a unanimous decision of the Court is not hard when no one can say conclusively what the order means. If Judge Xinis is going to move ahead with new orders, it will find its way back to the Supreme Court.
The Court clearly (and correctly) held that Garcia deserves due process and that this removal was a mistake. As I have previously stated, the Administration should have brought him back for proper deportation. I still believe that. However, the Court also held that the President’s Article II authority over foreign policy has to weigh heavily in such questions.
As the court goes down this road, it can quickly get bogged down in subjective judgments on what constitutes facilitation. That is the can kicked down the road by the Supreme Court and it is now likely to come rattling back to the justices.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”