• The Supreme Court said the Trump administration needs to “facilitate” Kilmar Abrego Garcia’s release from custody in El Salvador, but officials still aren’t asking for it.
• The high court could be asked to weigh in again soon after an appeals court ruled April 17 that Trump officials aren’t allowed “to do essentially nothing.”

Even though the Supreme Court told Trump administration officials to facilitate the return of Kilmar Abrego Garcia, the case could soon be back at the Supreme Court‘s doorstep. The Trump administration says it doesn’t need to even request the illegally deported Maryland father’s release from El Salvador, because of how the court worded its decision.

The story starts in October of 2019, when a U.S. immigration judge ruled that Abrego Garcia, an El Salvador citizen, couldn’t be deported back there because he would probably face gang violence. On March 15, Trump officials sent him there, anyway.

Less than a month later, the Supreme Court said the Trump administration needs to “facilitate” both Abrego Garcia’s release from custody in El Salvador and return to the U.S.

But Trump officials are now saying they don’t even need to ask El Salvador’s government to release the Maryland father.

“That’s up to El Salvador if they want to return him, that’s not up to us,” U.S. Attorney General Pam Bondi said April 14, responding to a question from President Donald Trump at an Oval Office meeting with cabinet officials and El Salvador’s president. “The Supreme Court ruled, President, that if … they wanted to return him, we would facilitate it, meaning provide a plane.”

To some, such statements show the administration is refusing to obey the nation’s highest court.

“(T)he Trump administration now stands in open defiance of a Supreme Court order,” writer Mark Joseph Stern, who focuses on the law and courts, wrote April 14 in the online magazine Slate.

However, some law professors and legal commentators say the Supreme Court helped create the legal quagmire that’s unfolded by waffling over what the administration must do. Its ruling discussed getting Abrego Garcia back, but also emphasized the president’s authority over foreign affairs.

The administration “keeps mis-describing what the Supreme Court actually ruled,” wrote Georgetown law professor Stephen Vladeck April 15 in his “One First” Supreme Court-focused newsletter. “But at least some of this mess is the Supreme Court’s fault.”

The Supreme Court, which didn’t respond to USA TODAY’s request for comment, may get another chance to weigh in soon. On April 17, the Fourth Circuit federal appeals court rejected Trump officials’ latest appeal in the case.

The government “claims in essence that because it has rid itself of custody that there is nothing that can be done,” wrote federal appeals Judge J. Harvie Wilkinson III, a Reagan appointee, on behalf of a unanimous three-judge panel.

“This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Wilkinson added.

What the Supreme Court ruled

On April 4, Maryland federal trial Judge Paula Xinis ordered Trump officials to “facilitate and effectuate” Abrego Garcia’s return to the United States within three days.

However, the Supreme Court swiftly removed that deadline.

The court later ruled that the rest of Xinis’ order “remains in effect” and specifically requires the government to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador.”

But the court, which includes six Republican appointees, also said Xinis needed to clarify what she meant by telling Trump officials to “effectuate” Abrego Garcia’s return, and should show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

Political gamesmanship?

It’s that last portion of the ruling that Trump officials are hanging their hats on as they insist they don’t need to do anything vis-a-vis the Salvadoran government to try to bring Abrego Garcia back.

“No court in the United States has a right to conduct the foreign policy of the United States. It’s that simple,” Secretary of State Marco Rubio said at the April 14 Oval Office meeting with cabinet officials and El Salvador’s president.

Trump’s Justice Department has argued that all the Supreme Court meant is the U.S. government has to allow Abrego Garcia back in if he shows up at the border.

“In other words, to ‘facilitate’ an alien’s return is to remove any domestic obstacles that would otherwise bar the alien’s ability to return,” it said in an April 16 court filing.

Both Trump officials and El Salvador’s government have appeared happy to evade responsibility while Abrego Garcia languishes in Salvadoran custody.

“How can I return him to the United States? Like I smuggle him into the United States?” Salvadoran President Nayib Bukele asked rhetorically at the April 14 meeting.

No one at the meeting told Bukele there was no need to “smuggle” the Maryland father because the U.S. would let him in.

A mess of the Supreme Court’s making?

As the Trump administration has continued publicly resisting calls to use diplomacy to try to get Abrego Garcia back, some law professors have suggested the Supreme Court invited the standoff.

The high court didn’t mandate Abrego Garcia’s return, didn’t set deadlines for the government’s next steps, and was vague about what the Trump administration actually needs to do, Georgetown law professor Stephen Vladeck wrote in his “One First” newsletter.

The “central problem with the Supreme Court’s ruling” Vladeck wrote, “is that it left a little bit of wiggle room.”

Jed Rubenfeld, a Yale law professor who writes a legal column for the Free Press, wrote April 16 that the Trump administration’s behavior didn’t amount to disobeying the judicial branch.

“The White House may be dragging its feet—and it’s not exactly putting pressure on Bukele to let Garcia go,” Rubenfeld wrote. “But it has not (yet) defied the Supreme Court, in part because the Court’s short, ambiguous order did not define facilitate,” he added.

Is return to Supreme Court inevitable?

Since the Supreme Court’s ruling, Judge Xinis has ordered the government to produce documents and answer questions under oath about attempting to bring Abrego Garcia back. On April 17, the Fourth Circuit federal appeals court backed Xinis’ order, explaining that Trump officials aren’t allowed “to do essentially nothing.”

The Justice Department’s next legal move may be a return to the Supreme Court. The department didn’t respond to USA TODAY’s request for comment on whether it will be filing that appeal.

“At this rate, although the administration could seemingly end all this diplomatically in a matter of hours, it’s unclear how the case will be resolved without another high court trip,” wrote Jordan Rubin, a former New York prosecutor, in his MSNBC “Deadline: Legal Blog” April 14.

“If one comes, the majority could be confronted with the weaknesses of its order and, if it cares about holding the government to its burden, it might have to issue a stronger one,” Rubin added.