Note from Elie 4/18: How Could the Kilmar Abrego Garcia Standoff End?
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Megan Rapinoe here. This week on A Touch More, we open up the mailbag and answer your burning questions. And we have a great conversation with two-time Olympic medalist Lauren Holliday about the business of women's sports and how to support and grow the next generation of female athletes. Check out the latest episode of A Touch More wherever you get your podcasts and on YouTube.

Okay.

On to more serious matters. You know, I just did a segment with CNN where I was asked a question and I knew this was coming. The news just broke that Donald Trump is talking about firing the Fed chair, Jerome Powell. He's tweeting about it or true socialing about it.

or whatever. He hasn't actually done it. And the question was, can he do that? And my answer was, we don't know. And sometimes that's really the only accurate answer. I laid out what the current status of the law is, which is no, but that certainly could change. There's some reason to think this may make its way up through the courts to the Supreme Court. And there's good reason to think if it does, the Supreme Court may change the law that's been in effect for 90 years or so on that particular issue. But

Sometimes we just have to acknowledge what we don't know. That happens a lot in the law, but of course it's happening way more frequently over the last two plus months since Donald Trump retook office.

the presidency, there's always going to be some wiggle room, some argument, but usually you can say, no, no, no, this is no good. This is likely to succeed. This is not likely to succeed. Here we're really entering new ground almost by the day. And that is certainly the case with the ongoing dispute over Kilmar Abrego Garcia. So what I want to do today is dig into some of the questions around that case, but specifically, how could this all end?

All right, so here we go. As always, send me your thoughts, questions, comments to letters at cafe.com. This is a path of perfect perfection.

lawlessness. Now, that's not a quote from some online resistance warrior. Those are the words of Judge Harvey Wilkinson, a Reagan appointee and arguably the single most revered federal appellate judge of his generation in the conservative legal and political universe. This is the same jurist who ruled in 2002 that the United States could indefinitely detain an American citizen who was captured in Afghanistan as an enemy combatant.

a finding that was later overturned by the U.S. Supreme Court. Yet for Judge Wilkinson, the Kilmar-Abrego-Garcia case poses an untenable threat to the judicial system.

As this standoff escalates between the executive and judiciary branches over the fate of Abrego Garcia, where exactly could this path of perfect lawlessness, as Judge Wilkinson put it, ultimately lead us? How might it all end for the individual at the heart of this legal dispute? And how does each potential outcome alter the balance of powers between the president and the courts? Let's consider the three most likely potential end results.

First, the status quo, which we'll call passive aggressive defiance. The Supreme Court has instructed that the administration must facilitate, keep that word in mind, facilitate Abrego Garcia's return to the United States. But crucially, the justices declined to adopt the lower court's instruction that the government, quote, effectuate Abrego Garcia's return.

The Supreme Court drew this distinction because in its view, while the courts can compel the executive branch to take certain domestic actions, it would violate separation of powers principles for any judge to definitively instruct the president to reach a particular foreign policy outcome. Hence, facilitate, which essentially means help it along, but not quite effectuate, which means make it happen.

The practical problem, of course, is that facilitation is in the eye of the beholder. There's no question that the government illegally sent Abrego Garcia to El Salvador, contrary to a withholding order prohibiting his deportation specifically to El Salvador.

By any measure of fairness and good faith, the administration should now clean up its own mess. Instead, the government has chosen to give facilitate the narrowest possible interpretation, reading it only to require that it, quote, remove any domestic obstacles to Abrego Garcia's return. The administration maintains that it need not affirmatively seek his return, which would almost certainly do the trick, given that the United States is paying a foreign ally to rent the prison space where he's currently being held.

Rather, it's enough in the administration's view to promise that were Abrego Garcia somehow to materialize in U.S. custody without any such request, they'd let him hop on a government plane back to American soil. The district court judge, Paula Zinnes, is having none of it. She has set an aggressive discovery schedule to extract key facts about how the original error occurred around Abrego Garcia's deportation to El Salvador and what the government has done to fix it.

But the administration has made clear it intends to obfuscate and slow play. Assuming that continues, the ultimate result in this scenario could be a series of judicial reprimands, contempt findings, and accompanying fines, scalding court rulings, referral of bad actors to inspectors general, and bar licensing committees. But ultimately in this scenario, the will of the executive branch prevails and Abrego Garcia remains in El Salvador.

Now our second scenario, the constitutional crisis, aggressive defiance. Now the courts might also choose to escalate their current likely feudal efforts to enforce the squishy facilitate mandate and start issuing more direct orders to the executive branch. Judge Zinnes could, for example, instruct the administration to affirmatively request Abrego Garcia's return or

or to stop payments for the private prison space in El Salvador until he is returned. Both suggestions, which were floated by Professor Steve Vladek in his indispensable substack, highly recommended. And if the case makes its way back up the appellate ladder, the courts might change their view and take a harder line towards the executive branch.

But it seems entirely unlikely that even ratcheted up orders from the courts will move the Trump administration towards full compliance. They're barely observing the current order to facilitate Abrego Garcia's return. And there's every reason to believe the administration would simply refuse if ordered to take some specific affirmative step in its handling of foreign affairs.

In this scenario, we'd arrive at a stalemate. You all know I'm generally among the last to invoke the specter of a constitutional crisis. But if the courts, especially the Supreme Court, were to explicitly order the executive branch to take some specific action and the administration flatly refused, then we wouldn't know what happens next.

Once again, the end result for Abrego Garcia is the same. He remains in El Salvador while the showdown plays out and likely stays there unless the administration has a drastic change of heart and chooses to comply with legal commands from the courts.

Third and finally, the tactical drawdown, return of Abrego Garcia and likely re-deportation. A core problem for Abrego Garcia is that he lacks legal status in the United States beyond the withholding order that provides he can't be deported to El Salvador. He's neither a visa holder nor a legal permanent resident nor a U.S. citizen. Thus,

If the administration eventually concludes that a prolonged showdown in the courts will inflict unsustainable political costs, it could make a practical move to end the legal battle. It could bring Abrego Garcia back to the United States and then immediately begin the process of deporting him to any country other than El Salvador. Abrego Garcia likely wouldn't go without a fight, as his legal team surely would challenge

His ongoing detention would argue that the administration has offered no substantive evidence of gang ties or criminality. But the cold reality for Abrego Garcia is that he can be deported even without evidence of criminality or other wrongdoing.

You'll notice one scenario that's not among our listed possibilities. The Trump administration will not admit its mistake, correct it, bring Abrego Garcia back and allow him to remain in the United States. The government could have done that right away. They initially acknowledged, quote, administrative error in the deportation of Abrego Garcia and promptly fired the Justice Department attorney who made this truthful in court concession.

But the fleeting admission that the government screwed up, as Judge Wilkinson put it, was unaccompanied by remedial action. Now the moment has passed and the administration digs in deeper by the day. Attorney General Pam Bondi flatly declared this week that, quote, he is not coming back to our country. There was no situation ever where he was going to stay in this country. None, none, end quote.

Abrego Garcia has become a political pawn through none of his own doing and to his own misfortune. And there's zero chance the administration lets him return to his former life. In the end, we're left with three plausible endgame scenarios. None are great for Abrego Garcia or for our judicial system. The Trump administration made this mess and now they've chosen to go on the attack rather than to fix it.

Barring some sudden, unexpected return to normalcy, reason, and good old-fashioned fair play, it'll get worse before it gets better. Thanks for listening, everyone. Stay safe and stay informed.