Northwestern Law professors on President Trump’s ‘slow walk efforts’ in Abrego Garcia case

CHICAGO --- The presiding judge over the case of the wrongly deported Maryland man who was sent to an El Salvadoran prison announced Tuesday that she is considering contempt proceedings if the Trump administration doesn’t present evidence of their efforts to return the man to U.S. soil.

Professor Monica Haymond says there’s very little that will happen without more public pressure.

Quote by Professor Haymond:

“A court could try to impose sanctions on an agency or the government lawyers for failing to comply with the court’s orders. But courts are pretty reluctant to do that, and historically they haven’t. There are also some unsolved separation-of-powers questions lingering in the background about whether courts can fine agencies for noncompliance. 

“Congress could also try to get involved to force compliance in a case like Abrego Garcia’s. They can use their subpoena, appropriations and impeachment power to make life unpleasant for an unwilling executive. 

“But without broad public support to pressure those in the legislative and executive branches with hopes of longer political futures, those measures are unlikely to go far.”

Professor James Pfander considers remedial options in the event President Trump continues his slow walk efforts to secure return of wrongly deported man.

Pfander has written about constitutional tort litigation that arose to challenge the Bush administration’s program of extraordinary rendition, detention and extreme interrogation verging on torture. A recent paper, published in the Harvard Law Review, explores available remedies against law-breaking federal officials.

Quote by Professor Pfander:

“In the common law tradition that forms the backdrop for our system of constitutional remedies, the best option will be some form of action against an inferior official, rather than against Trump himself.

“President Trump’s willingness to take unilateral executive action without working through federal agencies or securing legislative support will test the limits of executive power across an array of policy issues. His actions invoking the Alien Enemies Act to deport foreign nationals, freezing the budgets of federal agencies and universities, and discharging government officials without any showing of cause all pose profound legal issues. Assuming the federal courts rule against President Trump, as the lower federal courts have in many such cases, what remedies can they deploy to compel the President to comply with their decisions? That question has been posed most sharply by the wrongful deportation of a Maryland man, Kilmar Armando Abrego Garcia, and the government’s tepid response to a court-ordered obligation to help facilitate his return to the United States.

“The President’s absolute immunity from criminal prosecution and many civil lawsuits will make it challenging for plaintiffs to secure relief against the President himself. Instead, courts working within the remedial framework in the United States will likely order relief against the President’s subordinate officials. Whether such relief will suffice to secure the return of those wrongly deported remains, somewhat surprisingly, an open question.”  

If you’d like to arrange an interview with Professor Pfander, please reach out to Shanice Harris at shanice.harris@northwestern.edu. Professor Haymond is unavailable for interviews, but media are free to use her quotes.