A Maryland federal judge on Friday told the Trump administration to comply with a Supreme Court order “in good faith” regarding the ordered return of an alleged MS-13 gang member erroneously deported to El Salvador.
Kilmar Abrego Garcia, a Salvadoran national and Maryland resident, was deported to El Salvador last month for being an alleged MS-13 gang member. His attorneys have maintained that he does not have any ties to the violent gang.
In a Friday hearing, U.S. District Judge Paula Xinis ordered the government to provide daily updates as they comply with Thursday’s Supreme Court order upholding her previous order to return Abrego Garcia to U.S. soil.
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“I hope you will, in good faith, comply and we’ll take it from there,” Xinis said Friday. “I want daily updates until this matter is resolved.”
Deputy Assistant Attorney General Drew Ensign and Xinis made clear during the hearing that they did not agree on their understanding of the high court’s order.
On Thursday, the Supreme Court wrote that Xinis’ order “properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
The high court also said the “intended scope of the term ‘effectuate’” in Xinis’ order is “unclear, and may exceed the District Court’s authority.”
“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,” the Court wrote.
“It’s going to be very difficult for the parties and for the trial court to understand what the scope is of the Supreme Court’s order once the trial court takes the issue back up,” defense attorney Phil Holloway told Fox News Digital.
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Holloway said that the ambiguity in the high court’s order could lead to the case ending up in the justices’ hands again for further clarification.
“The government is going to say that they are operating in good faith to comply with an order from the Supreme Court that is murky, and they’re trying their best to comply with it,” he said. “At the same time, the president’s trying to exercise his executive authority under Article II, which also the Supreme Court said the lower court must recognize.”
Holloway said the government can take various routes as it moves forward, including seeking a reprieve from Xinis’ order and arguing that it is “unduly burdensome, and it hinders the president’s executive authority.”
“I think they may wind up trying to get him out of that prison and sending him to a different location,” Holloway said. “But I think they’re going to fight pretty hard on whether they actually have to bring him back to U.S. soil.”
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Jonathan Turley, a law professor at George Washington University and a Fox News contributor, said that the extent of the district court’s power to order the government to comply with the Supreme Court’s order is also in question.
“It’s entirely unclear what, if anything, the court can do beyond other than nudge the administration in this direction,” he said.
Heritage Foundation Legal Fellow Hans von Spakovsky specifically pointed to the Supreme Court noting that the district court must give “[d]ue regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
“So while the government has to act in good faith to use diplomatic efforts to negotiate Garcia’s return and keep the district court informed of its efforts, the district court cannot give the government direct orders on how to accomplish this foreign policy task or penalize the government if it is not successful,” von Spakovsky said.
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“The assumption is that if the court determines that the administration is acting in bad faith, it could take some other action,” Turley noted. “The question is, how do you make that determination?”
Turley said the district court could hold the government in contempt if it determines the administration acted in bad faith. However, enforcement may be challenging, given Abrego Garcia is overseas and the president’s Article II authority over foreign affairs.
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