Thread by @ProfMJCleveland

🚨🚨🚨Judge Xinis issues two orders in Garcia (El Salvadorian case). Many thoughts: First, Judge provides footnote with many things government did to "facilitate" return to U.S. BUT that Article II decides to do those things is different than Article III mandating it. 1/

2/ Court continues to assume Garcia is held in El Salvador because we requested it and we are paying for it. DOJ needs to clarify that is NOT the case or if it is case, they'd be wise to immediately tell El Salvador are prior request is rescinded & no longer paying for it.

3/ Here is newspaper article Judge Xinis cited but this suggest that deal was only for tDa members. Also, since AP said it had a memo re deal, I'd think they'd release it if it concerned El Salvadorians. apnews.com/article/trump-…

4/ For once, Judge Xinis actually states what SCOTUS said about her earlier order and what was proper but immediately moves the goalposts claiming she "ordered no more than what the Supreme Court endorsed."

5/ Judge Xinis is expressly claiming the Supreme Court endorsed her ordering Defendants “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible." It did not.

6/ The thing is, though, Trump Administration would do that as it stated in its declaration. What Trump Administration refuses to do, is actually what SCOTUS suggested it must do, namely "facility release from custody."

7/ BUT SCOTUS's suggestion that that was a proper order was based on the record & the record was silent on why Garcia was in El Salvadorian custody, but assumption was it was because Trump is paying for that.

8/ Trump needs to make clear THAT is not the case and should do so in its next Declaration to make it part of the record. Because at that point, the only way to facilitate Garcia's release from custody would be by engaging in diplomatic efforts.

9/ And compelling Article II to engage in ANY diplomatic efforts, even just a nice ask, is beyond Article III's power. Trump Administration, though, seems to focus on what "facilitate" means instead. Here, I agree "facilitate" return to US means what Trump says it means.

10/ But Trump Administration needs to address the "facilitate release from custody" question because SCOTUS suggested it could be required to do that--again based on an incorrect assumption Garcia was in custody b/c of our agreement with El Salvador & payment of fees.

11/ And here, since Judge Xinis defined "facilitate" in context of release from custody in way that infringed on Article II authority, Trump Administration has hook to immediately challenge both her order to facilitate release from custody & discovery related to that.

12/ The only way for Trump Administration to "assist" or "make it easier" to get Garcia's release from custody is to engage in diplomacy. Again, Court can't order that. And strangely, on the "facilitate" return to US, Trump Administration has indicated it will do that if

13/ Garcia arrives at border. I can see court saying government must arrange for transport, without a huge Article II infringement concern. Trump Administration really needs to laser focus on issue: any "facilitation of release from prison would require diplomacy" and

14/ to focus the issue, Trump Administration should submit declaration saying it is not paying for Garcia's detention, that detention is not pursuant to any agreement U.S. entered with El Salvador concerning housing tDa. And if that's not true, then Trump should

15/ tell El Salvador it has rescinded its request Garcia's detention under the agreement & won't pay for it anymore. I think Judge Xinis COULD order Trump to do that because it isn't diplomacy but "contracts". So get that issue out of the way.

16/16 Most of the discovery then would be irrelevant and beyond what a court could order, giving Trump Administration a great argument on mandamus re discovery.