Thread by @ProfMJCleveland

THREADETTE: Just tonight I caught another nuance I missed in SCOTUS's Garcia order--something Trump Administration is hitting hard. SCOTUS didn't say clarify what "effectuate" means! SCOTUS said "clarify" "directive." 1/

2/ Now, Judge Xinis is reading "directive" as "effectuate," but Trump Administration has better argument that "directive" is the injunction because the entire injunction should be giving due regard to Trump's Article II authority over foreign affairs.

3/ And because the Court said "the rest of the order remains in effect but requires clarification on remand." What requires clarification? THE ORDER. Not the word "effectuate," although meaning of that term is unclear.

4/ SCOTUS, however, also said what was "okay": facilitate release from custody in El Salvador AND "ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."

5/ Judge Xinis didn't bother clarifying order: All she did was delete "effectuate" from order and said SCOTUS had affirmed her order--which is blatantly false. Now Trump Administration makes an argument that's off too.

6/ Trump argues facilitate doesn't mean interfering in El Salvador's affairs but means "remov[ing] any domestic obstacles that would otherwise impede the alien’s ability to return here." Now that is true, but SCOTUS said "facilitate release from custody" NOT facilitate return to US

7/ So we have to consider what SCOTUS meant by facilitate in that context. Trump canceling prison contract for Garcia & thus not paying for El Salvador to detain him, would be "facilitating" his release from custody. And that, a pure contractual move, arguably wouldn't interfere

8/ in foreign affairs or involving meddling in Trump's diplomacy. BUT now that we know that Garcia is being "detained pursuant to the sovereign, domestic authority of El Salvador," there can be no "facilitation" of release from custody w/o interfering in foreign affairs.

9/9 So watch tomorrow and Tuesday for the debate over what was to be "clarified": what "effectuate" meant or what the "order" required. The better reading of SCOTUS opinion was it mean clarify entire injunction.