Earlier today, Solicitor General Sauer filed his first emergency application with the Supreme Court. This case concerns the District Court's order to return an alien who was deported to a prison in El Salvador. The statement lays out the stakes:
On Friday afternoon, a federal district judge in Maryland ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight. Complicating the negotiations further, the alien is no ordinary individual, but rather a member of a designated foreign terrorist organization, MS-13, that the government has determined engages in "terrorist activity" or "terrorism"—or "retains the capability and intent to engage in terrorist activity or terrorism"—that "threatens the security of United States nationals or the national security of the United States." The order compels the government to allow Kilmar Armando Abrego Garcia to enter the United States on demand, or suffer the judicial consequences.
At a superficial level, I understand the district court's order. The judge found that Garcia was unlawfully deported, and therefore sought the return of the alien. Isn't this simply the sort of injunction that courts issue to the executive branch all the time? Not quite. Here, obtaining the return of the alien would require the President to successfully negotiate the release of the alien from a foreign leader. Even if the President makes this request, the foreign leader is under no obligation to comply. I am seriously doubtful this is the sort of power that the judiciary has.
