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**APRIL 16, 2025**

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Kuttner on TAP

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**** John Roberts's Dangerous Game

In ruling after ruling, the Supreme Court pretends to uphold
lower-court constraints on Trump but provides a road map for Trump to defy the judges' orders.

The Supreme Court, in responding to the Trump administration's request for an emergency stay of District Judge Paula Xinis's order to return Kilmar Abrego Garcia from an El Salvador prison, resorted to double-talk. The 9-0 unsigned opinion, most likely written by Chief Justice John Roberts, nominally agreed with Judge Xinis, who wrote that "there were no legal grounds whatsoever for [Abrego Garcia's] arrest, detention, or removal ... Rather, his detention appears wholly lawless."

But in remanding the case for further consideration, the Court included the magic words "The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs."

This is hogwash. The kidnapping of Abrego Garcia had nothing whatever to do with foreign affairs. El Salvador was simply willing to imprison him.

But predictably, at
Monday's Oval Office charade with President Trump and Salvadoran President Nayib Bukele, deputy White House chief of staff Stephen Miller contended that "the Supreme Court said that the district court order was unlawful and its main components were reversed 9-0 unanimously." That was a lie, but given the extensive wiggle room that the Court provided, it might as well have been true.

The Supreme Court also did not explicitly require Abrego Garcia's return; changed the order that the government must "effectuate" the return to "facilitate"; failed to set any deadlines for action; and avoided a ruling on whether the Alien Enemies Act of 1798 can be used at all in the current circumstances.

Though the ruling was nominally unanimous, three justices saw through both Roberts and the White House. Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, wrote in partial dissent, "The Government now requests an order from this Court permitting it to leave Abrego Garcia, a
husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argu??ment the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong."

And they added, ominously and all too accurately, "The Government's argu??ment, moreover, implies that it could deport and incarcer??ate any person, including U.S. citizens, without legal con??sequence, so long as it does so before a court can intervene." Trump has already suggested that this could come next.

Yesterday afternoon, Justice Department representatives stiffed Judge Xinis even more defiantly than in previous hearings [link removed]. Xinis, who initially called for daily updates that have yielded "nothing" in her view, scheduled a discovery process that could take two more weeks.

Government attorney Drew Ensign, in pretend compliance with the court
order to facilitate Abrego Garcia's return, told the judge, "If Abrego Garcia presents himself at a port of entry, we will facilitate his entry to the United States." The government also said in a court filing [link removed] that Abrego Garcia would be immediately detained upon any arrival, and either sent to a third country or back to El Salvador, after it attempted to "terminate" the 2019 order that prevented him from being sent there in the first place, due to risk for his safety.

The contention that Trump has no power to compel the return of Abrego Garcia is preposterous on its face. The indispensable Heather Cox Richardson quoted Steve Inskeep of NPR: "If I understand this correctly, the U.S. president has launched a trade war against the world, believes he can force the EU and China to meet his terms, is determined to annex Canada and Greenland, but is powerless before the sovereign
might of El Salvador. Is that it?"

[link removed]

THIS CASE WOULD BE OUTRAGEOUS ENOUGH it if were a one-off. But it is a Roberts pattern.

A district court rules that some administration action is plainly a violation of law, and orders its reversal. The administration then makes an "emergency" appeal to the Supreme Court for a stay, which is granted, based on very thin evidence. Critics call this the "shadow docket." The Court then remands the case to the lower court, on terms that give the administration plenty of room to avoid consequences.

The Supreme Court has yet to deliver a definitive ruling requiring Trump to obey the law. The high court's emergency stays [link removed] have put on hold lower-court rulings requiring Trump to reinstate NLRB and Merit Systems Protections Board officials who were illegally fired; to reverse more than 16,000 arbitrary
firings of probationary workers by six agencies; and to reinstate more than $65 million in Education Department grants that funded diversity, equity, and inclusion initiatives. In that last case, Justice Ketanji Brown Jackson, joined by Justice Sotomayor, called it "beyond puzzling that a majority of the Justices conceive of the Government's application as an emergency."

In a few cases, the high court has flatly ruled in the administration's favor. It allowed [link removed] the Education Department grants to be cut, for example. In another ruling [link removed], the Court required individual habeas corpus rulings for those deported under the Alien Enemies Act, but provided no process for the Venezuelans already sent away to El Salvador for allegedly being part of the Tren de Aragua gang.

Trump's open defiance of the law
keeps predictably escalating. The most recent instance is his contention that he can simply terminate hundreds of regulations, despite the plain requirement of the Administrative Procedure Act that proposed changes be put out for comment.

Sooner or later, the Supreme Court will have to definitively resolve these cases one way or another. In the meantime, Roberts's game of catch-and-release is weakening the rule of law and emboldening Trump to engage in ever more flagrant lawbreaking.

With Republicans in Congress completely in Trump's pocket, the Supreme Court is our last chance to prevent a slide into outright dictatorship. But by the time the Court does get around to a definitive ruling, a pumped-up Trump could well feel that he has the power to defy the courts entirely.

~ ROBERT KUTTNER

Follow Robert Kuttner on Twitter [link removed]

On the Prospect website

The Government Has Already Won the Meta Case
[link removed]
Mark Zuckerberg fairly obviously bought Instagram and WhatsApp to neutralize a perceived competitor. He isn't doing that with TikTok, and the FTC's monopolization trial is why. BY DAVID DAYEN

Director of National Intelligence Quietly Releases Corruption Report [link removed]
Intelligence chief forced to disclose widespread government corruption ... in China. BY DANIEL BOGUSLAW

The Best Tax System on Earth [link removed]
Tax day could be so much easier, if we simply cared to invest properly in the IRS. BY RYAN COOPER

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