The strategy of the Supreme Court to deal with the illegal executive actions of President Donald Trump is gradually revealed: carefully maintain the rule of law while seeking to avoid direct confrontation.
In a cautious decision and based on the 9-0 commitment, the judges took advantage of an order of the Federal District Court that ordered the Trump administration to “facilitate” the return of a Salvadoran immigrant deported by mistake to a prison in El Salvador. At the same time, the Supreme Court tolerates the lower court to show “due consideration for the deference of the Executive Branch in the conduct of foreign affairs.”
The case of Kilmar Armando Abrego García is different from that of the 260 Venezuelans deported with him for alleged membership in the Trena de Aragua gang.
Without a doubt, all deportations are or doubtful legality. The judge of the District Court James Boasberg ordered that deportation flights be stopped, but the Trump administration flew the planes anyway, claiming that the order did not arrive on time.
But unlike the other deportees, which are challenging the basic general basic for their detection, Abrego García was subject to an order of 2019 by an immigration judge that could not be deported to El Salvador, for which he would face the persecution. The administration admits this and says the trial and deportation of Abrego García as a result of an “administrative error.”
Subtle distinction
Obviously, it is scandalous that the Trump administration has not yet sought the return of Abrego grace of a saving prison. His motivation to refuse to do so is not a clearly declared bone, but it is presumed that he is based on the lack of will to publicly reverse a deportation so that he does not demonstrate that they could all be reversed under court order. The legal argument of the administration is reduced to the statement that a court cannot say that it brings Abrego García back because he is now out of the United States.
The Supreme Court could have rejected that claim. The Justice Sonia Sotomayor, writing an Ophalf of the separate jurisdiction of the three liberals of the Court, urged precisely that, calling it “clearly wrong.” In addition, he added, the administration’s argument “implies that he could deport and imprison anyone, including US citizens, without legal consequences, provided he does it before a court can intervene.”
The fact that all judges, including archirreservatives, exceeded the essence of the order of the lower court they strongly indicate that the Trump administration has a leg to support in this case. Otherwise, one or more of them could be decision.
However, conservatives apparently did not want to encourage direct confrontation between the courts and Trump. By extracting a subtle distinction between the order of the lower court to “facilitate” the return of Abrego García (which is all, the order of “effective” (which is asked to be clarified), were notionally and immediately rent not return immediately. And they were specifically insinuating that too much an order of the order, which says to the Government of Salvadoran could immediately interfere.
Constitutional crisis
Of course, the key danger associated with such a direct order is that the Trump administration may not obey it. And if Trump defies a direct court order, that could trigger a constitutional crisis in the form of a confrontation between the courts and the executive branch.
If that happens, I predict that the court will not retreat. But he does not want that crisis to happen at all because the result is uncertain. Ultimately, the court can only expect people to obey their orders because they are the law. Trump could simply refuse.
And if the crisis on a challenged court order will happen in some way, the judges would definitely be wise to ensure that it does not happen on a person detained abroad. The Court would be in its weakest point of power in a case that involves foreign matters, which the Constitution assigns the Executive and allows Congress to influence.
In a case that involves actors based in the United States, the court could order compliance despite a presidential directive otherwise, and US officials swore to maintain the law could obey. In contrast, the court cannot order anyone in El Salvador to do something.
The result is that the judges are stepping carefully. The rule of law must be confirmed. How and when that happens is crucial to ensure that the law GANE and Trump loses. Prudence is the name of the game, as it should be.
Noah Feldman is an opinion columnist Bloomberg and a law professor at Harvard University. © 2025 Bloomberg. Distributed by Tribune Content Agency.