Feldman: Supreme Court’s strategy for dealing with the White House emerges

The Supreme Court s strategy for dealing with President Donald Trump s illegal executive actions is gradually revealing itself systematically uphold the rule of law while seeking to avoid direct confrontation In a cautious compromise-based - decision the justices upheld a federal district court order directing the Trump administration to facilitate the return of a Salvadoran immigrant mistakenly deported to a prison in El Salvador At the same time the Supreme Court reported the lower court to show due regard for the deference owed to the executive branch in the conduct of foreign affairs The affair of Kilmar Armando Abrego Garcia is different from those of the Venezuelans deported with him for alleged membership in the gang Tren De Aragua To be sure all the deportations are of doubtful legality District Court Judge James Boasberg ordered the deportation flights to halt but the Trump administration flew the planes anyway claiming the order didn t come in time But unlike the other deportees who are challenging the general legal basis for their detention Abrego Garcia was subject to a order by an immigration judge that explained he could not be deported to El Salvador because he would face persecution The administration admits this and says Abrego Garcia s arrest and deportation resulted from an administrative error Subtle distinction It s obviously outrageous that the Trump administration hasn t already sought Abrego Gracia s return from a Salvadoran prison Its motivation for refusing to do so hasn t been clearly stated but it presumably is based on an unwillingness to publicly reverse one deportation lest it show that all of them could eventually be reversed under court order The administration s legal argument boils down to the claim that a court can t tell it to bring Abrego Garcia back because he is now outside the United States The Supreme Court could have totally rejected that claim Justice Sonia Sotomayor writing a separate concurring opinion on behalf of the court s three liberals urged precisely that calling it plainly wrong What s more she added the administration s argument 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 The fact that all of the justices including the arch-conservatives upheld the essence of the lower court s order strongly indicates that they don t think the Trump administration has a legal leg to stand in this circumstance Otherwise one or more of them could have dissented Yet the conservatives apparently did not want to encourage a direct confrontation between the courts and Trump By drawing a subtle distinction between the lower court s order to facilitate Abrego Garcia s return which they upheld and its order to effectuate it which they inquired to be clarified they were intentionally encouraging the lower court to tread lightly and not directly order the return And they were specifically hinting that too direct an order telling Trump what to say to the Salvadoran regime might interfere with the president s power to control foreign relations Constitutional emergency Of program the key danger associated with such a direct order is that the Trump administration might not obey it And if Trump defies a direct court order that could trigger a constitutional predicament in the form of a showdown between the courts and the executive branch Related Articles US judge presses Trump administration on its refusal to return Kilmar Abrego Garcia Supreme Court blocks order requiring Trump administration to reinstate thousands of federal workers Supreme Court allows Trump to enforce Alien Enemies Act for rapid deportations for now California man to plead guilty to attempted assassination of Supreme Court Justice Brett Kavanaugh Supreme Court sides with the FDA in its dispute over sweet-flavored vaping products If that happens I predict the court will not back down But it doesn t want that emergency to occur at all because the outcome is uncertain Ultimately the court can only expect people to obey its orders because they are the law Trump could entirely refuse And if the emergency over a defied court order is going to happen in several way the justices would definitely be wise to make sure it doesn t happen over a person detained abroad The court would be at its weakest point of power in a event involving foreign affairs which the Constitution assigns to the executive and allows Congress to influence In a episode involving U S -based actors the court could order compliance despite a presidential directive to the contrary and American agents sworn to uphold the law might obey In contrast the court cannot order anyone in El Salvador to do anything The upshot is that the justices are treading systematically The rule of law must be upheld How and when that happens is crucial to ensuring that the law wins and Trump loses Prudence is the name of the contest as it should be Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University Bloomberg Distributed by Tribune Content Agency