Even The Supreme Court Says Human Trafficking People by Accident Goes Too Far, Less Sure What To Do About It

We predicted earlier this week that the Supreme Court would need to weigh in on the Abrego Garcia case. Now it has done so with a striking unanimous order that rejects the DOJ’s attempt to wash its hands of what it admits was “accidentally” trafficking Garcia to El Salvador — a country he had protected status from due to credible threats of torture. The Court’s message is clear: yes, federal courts can and should tell the government to fix its “mistakes,” especially when those mistakes involve sending someone to face torture in violation of U.S. law.

As we had covered, the Trump administration is completely dismissive not just of due process around those it is trafficking to a foreign slave camp (which might have prevented the “accidental” trafficking of someone), but has also been mocking the courts for suggesting it should maybe try to fix the mistake it admits it made. As I noted, anyone with even a smidgen of a conscience or shame would try to fix a mistake upon realization it had been made. I would expect that government officials would go even further if the “mistake” was literally human trafficking someone when they were forbidden from doing so. Instead, the Trump administration has basically just been mocking the district court judge who told them to try to fix this very fixable situation. That’s what puts the sociopathic cherry on top of the evil, hateful human trafficking policy.

Again, this isn’t hard: if you make a mistake, you try to fix it. Especially when lives are at stake. If instead of trying to fix it, you’re laughing about the mistake, it not only shows a callous lack of concern about the human lives at stake, it suggests it wasn’t so much of a “mistake” or “administrative error” but the administration’s position that it will simply ignore all laws and due process to disappear anyone.

Thankfully, even this Supreme Court seems to recognize how fucked up Garcia’s situation is. It released an unsigned order admitting that of course a judge can order the US government to try to facilitate the return of the wrongfully trafficked person, while admitting that it’s possible that El Salvador could refuse it, saying that the original district court ruling may have gone a step too far in ordering DHS to both “facilitate” and “effectuate” Garcia’s return, saying that while it can be ordered to “facilitate” it, the “effectuate” part likely requires some help from a foreign sovereign (El Salvador), which could complicate things:

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The 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 intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. 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.

It’s notable that not a single Justice dissented from this, which is quite notable given the times we live in, and the ways some of the Court will bend over backwards to try to protect Trump.

Justice Sotomayor wrote an additional statement, saying that she wouldn’t have even taken the case in the first place, since the lower courts’ rulings (both the district court and the Fourth Circuit) correctly told the US government to go get Garcia and bring him home. It also calls out exactly how messed up the government’s unwillingness to try to fix its error is, and how it speaks loudly about its willingness to literally disappear anyone:

Instead of hastening to correct its egregious error, the Government dismissed it as an “oversight.” Decl. of R. Cerna in No. 25–cv–951 (D Md., Mar. 31, 2025), ECF Doc. 11–3, p. 3. 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 argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong. See Rumsfeld v. Padilla, 542 U. S. 426, 447, n. 16 (2004); cf. Boumediene v. Bush, 553 U. S. 723, 732 (2008). The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene. See Trump v. J. G. G., 604 U. S. ___, ___ (2025) (SOTOMAYOR, J., dissenting) (slip op., at 8). That view refutes itself.

That said, there are reasonable concerns that the order from the Supreme Court leaves the Trump administration an out: claiming that it’s done everything it can, but El Salvador won’t assist in freeing Garcia. That claim would be wholly unbelievable. The US created an agreement with El Salvador and has plenty of leverage to get Garcia back. Pretending it doesn’t should be seen as a real possibility, and a serious Supreme Court would address it.

But the Roberts court is not a serious court and will ignore the bad faith actions of the Trump administration over and over again.

With the original deadline now passed, Judge Xinis wasted no time demanding answers from DHS. This morning, the government must detail Garcia’s current location, what steps (if any) they’ve taken to bring him back, and their concrete plans for his return. The DOJ quickly filed a motion for an extension, claiming the Xinis’s new deadline was inconsistent with the Supreme Court order and proposing to submit the required information by next Tuesday. The original deadline has now passed, and the extension has not been granted, so it’s unclear what exactly will happen next.

Update: Garcia’s lawyers quickly opposed the extension, and Judge Xinis has now granted a partial extension to 11:30am ET today. This is a developing story and we’ll bring more updates as soon as we can.

Update 2: The DOJ has submitted a filing saying it will not comply with the court’s order. The hearing is still scheduled for 1:00pm ET today.

The unanimity of the Supreme Court’s order, combined with Judge Xinis’s swift follow-up, sends a powerful message: the government’s “oops, nothing we can do” defense isn’t just legally wrong – it’s a dangerous assertion of unlimited power to disappear people beyond the reach of U.S. courts. As Justice Sotomayor noted, taken to its logical conclusion, this would mean the government could deport and incarcerate anyone, including U.S. citizens, as long as they acted before courts could intervene.

We’ll soon see if DHS finally decides to fix its “mistake” or continues its pattern of contempt for both the courts and basic human rights. But I wouldn’t hold my breath expecting the administration to put any real effort into doing the right thing… or that the Supreme Court would actually respond to the government’s inevitable bad faith efforts to avoid doing what it is required — both ethically and legally — to do in this situation.