Last week the Court tried to split the baby in a standoff between a federal judge and the Justice Department over the El Salvadoran who was deported with some 200 gang members. Judge Paula Xinis had instructed the White House to “facilitate” Mr. Abrego Garcia’s return, and the Supreme Court agreed.
But the Court also specified that the judge’s oversight had to be done with “due regard for the deference owed to the executive branch in the conduct of foreign affairs.” This ambiguity was an invitation to the judge and White House to work things out without making it a constitutional crisis.
Invitation not taken. The judge on Friday demanded an immediate Administration report, and now the White House seems to have decided it can do a legal dance to claim it doesn’t need to facilitate anything.
That was clear from the Kabuki theater Monday when Mr. Trump appeared in the Oval Office with El Salvador President Nayib Bukele. Asked if he could return Mr. Abrego Garcia, Mr. Bukele said, “How can I return him to the United States? . . . I smuggle him into the United States or what do I do? . . . The question is preposterous.”
Mr. Trump sat there smiling as if he knew he’d been handed a way to duck the command of the federal courts. Attorney General Pam Bondi said the Administration understands Judge Xinis’s instruction to “facilitate” to mean merely that “if El Salvador wants to return him . . . we would facilitate it, meaning provide a plane.”
Since Mr. Bukele says he won’t cooperate, the U.S. can say it can’t deliver. The federal courts lack authority to direct the President’s foreign policy under Article II of the Constitution, let alone the actions of El Salvador.
The question is what the courts do next. Judge Xinis held a hearing Tuesday, and by our deadline she had warned the Administration about “gamesmanship” but said she wouldn’t hold anyone in contempt for now. She also said she will require “two weeks of intense discovery” from Justice attorneys.