We're being lied to

The SCOTUS order in Noem v. Abrego Garcia

On Monday April 14, 2025, there was a televised event conducted in the White House at which members of the press were permitted to ask questions of President Trump and others. Also present at this event were Vice President JD Vance, Secretary of State Marco Rubio, Attorney General Pam Bondi, Homeland Security Secretary Kristi Noem, Trump Advisor Stephen Miller, President Nayib Bukele of El Salvador, and others. Questions were posed about the United States Supreme Court’s order of April 10, 2025, regarding the case of Noem v. Abrego Garcia.

The entirety of the Supreme Court’s April 10 order, which is publicly available online,¹ reads as follows.

On March 15, 2025, the United States removed Kilmar Armando Abrego Garcia from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement (CECOT). The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an “administrative error.” The United States alleges, however, that Abrego Garcia has been found to be a member of the gang MS–13, a designated foreign terrorist organization, and that his return to the United States would pose a threat to the public. Abrego Garcia responds that he is not a member of MS–13, and that he has lived safely in the United States with his family for a decade and has never been charged with a crime.

On Friday, April 4, the United States District Court for the District of Maryland entered an order directing the Government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” On the morning of April 7, the United States filed this application to vacate the District Court’s order. THE CHIEF JUSTICE entered an administrative stay and subsequently referred the application to the Court.

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. (Emphasis supplied.)

The Supreme Court’s order affirms the underlying District Court order in all but two respects. First, the Supreme Court’s order provides that “the deadline in the challenged order is no longer effective.” Second, it provides that “[t]he rest of the District Court’s order remains in effect but requires clarification on remand.”

“On remand” means that the Supreme Court is returning the matter to the District Court for further proceedings in the case. The emphasized portion of the above-quoted language is the Supreme Court’s directive regarding what the District Court needs to clarify in further proceedings. The Supreme Court did not remove or reverse the “effectuate” language from the District Court order, nor did it indicate that the District Court had no authority to order the Government (meaning, in this case, the Trump Administration) to “effectuate” Abrego Garcia’s release from El Salvador. Rather, the Supreme Court indicated that the parameters of an order to “effectuate” Abrego Garcia’s release “may” exceed the District Court’s authority, and that the District Court should clarify its directive “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

The only reasonable interpretation of the Supreme Court’s statement that the intended scope of the term “effectuate” in the District Court’s order “may” exceed its authority is that the Supreme Court is indicating that there are some things that the District Court can order the Government to do and some things that it can’t. If the Supreme Court’s order was that the District Court has no authority to order the Government to do anything to “effectuate” Albrego Garcia’s release from El Salvador, the Supreme Court would have said so in its April 10 order. The Supreme Court did no such thing.

The Supreme Court ordered the District Court to clarify its directive “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” This component of the Supreme Court’s order puts a finer point on the fact that there are some things that the District Court cannot order the Government to do relative to foreign affairs. Again, however, the Supreme Court stops short of stating that the District Court has no authority whatsoever to order the Government to do anything regarding any matter that implicates foreign affairs. The different branches of government exist, in part, to provide “checks” and “balances” against each other. When the respective spheres of different branches overlap, some shade of grey is the necessary result. The Supreme Court’s order clearly states that Abrego Garcia’s removal to El Salvador was illegal under federal law. The legal issue before the Supreme Court, and the “administrative error” admitted to by the Trump Administration, implicate the application of domestic law to an individual who was still within the United States at the time of the admitted error. Were it not for the admitted error, foreign affairs would not even be an issue in the case.

It is important to note that the Supreme Court’s order provides that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” The Supreme Court’s order puts the Government on notice that it expects the Government to “take steps” in furtherance of its order to facilitate Abrego Garcia’s release from custody in El Salvador. In other words, the Supreme Court’s order explicitly contemplates that the Trump Administration will do—or at least attempt to do—something in furtherance of facilitating Abrego Garcia’s release from custody in El Salvador.

Would the Supreme Court rule that the District Court has the authority to order the Government to conduct a hostile military raid in El Salvador to “effectuate” Abrego Garcia’s release? I have no doubt that the Supreme Court would quickly hold that such an order is beyond the authority of a District Court judge. This hypothetical scenario is a good illustration of why the Supreme Court remanded the matter to the District Court to clarify the scope of its order.

On the other hand, how might the Supreme Court respond to the Trump Administration simply declaring that the Supreme Court has no authority to order it to do anything relative to facilitating Abrego Garcia’s release from custody in El Salvador? At this point, no one can say for certain. However, in light of the Supreme Court’s expectation—explicitly stated in its April 10 order—that the Government do something in furtherance of facilitating Abrego Garcia’s release from custody in El Salvador, it seems unlikely that the Supreme Court would suddenly reverse course and humbly agree that the Government cannot be ordered to do anything. The Supreme Court, after having explicitly found that Abrego Garcia’s removal to El Salvador was, as a result the Government’s admitted error, “illegal,” might have a hard time swallowing the Government taking the position that “we don’t have to do anything about it and you can’t make us.”

In any event, during the White House event on April 14, Stephen Miller made a number of statements regarding the Abrego Garcia case. Miller serves in the Trump Administration as Homeland Security Advisor and White House Deputy Chief of Staff for Policy. Miller’s statements at the White House on April 14 were broadcast publicly and may be observed on YouTube.² I will address two of Miller’s statements in turn. The first reads as follows:

A district court judge tried to tell the administration that they had to kidnap a citizen of El Salvador and fly him back here. That issue was raised with the Supreme Court, and the Supreme Court said that the district court order was unlawful and its main components were reversed nine-zero unanimously stating clearly that neither Secretary of State nor the President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador.

To the extent that the District Court’s unclarified order required the Government to “effectuate” Abrego Garcia’s return to the United States by a date certain, the first sentence in Miller’s above-quoted statement, while on the extreme end of the spectrum of potential “effectuations,” does carry a sliver of truth. However, at best, it is disingenuous for Miller to assert that that is what the District Court actually ordered or expected.

The second portion of Miller’s statement is objectively false. The Supreme Court did not say that the District Court order was “unlawful,” nor that “its main components” are “reversed nine-zero unanimously.” The only component of the District Court order that was “reversed” was its deadline for compliance, which, by the time of the Supreme Court’s April 10 order, had already come and gone. Nothing else in the District Court’s order was “reversed.” Miller is simply lying about what the Supreme Court’s April 10 order says. The Supreme Court did remand the matter to the District Court with instructions to clarify the scope of the term “effectuate,” but nowhere in its order does the Supreme Court rule that the District Court could not order the Government to “effectuate” Abrego Garcia’s release in any manner whatsoever.

Miller’s statement that the Supreme Court “clearly” ruled that “neither [the] Secretary of State nor the President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador” is objectively false for the simple reason that the Supreme Court’s April 10 order (which is quoted in its entirety above) does not say that, clearly or otherwise. By acknowledging the deference the District Court owed the Executive Branch relative to foreign affairs, the Supreme Court was certainly suggesting, by implication, that ordering the Government to forcibly retrieve Abrego Garcia from El Salvador would likely exceed the District Court’s authority. However, by brandishing, again, a hypothetical example on the most extreme end of the spectrum of potential Government action, a form of action that was never mentioned in either the District Court’s or the Supreme Court’s respective orders, and by disregarding all other potential Government actions under the “clarification” ordered by the Supreme Court on remand, Miller was not giving an honest legal assessment of a Supreme Court order directed at the Government, he was engaging in disingenuous political posturing.

In response to an inquiry from President Trump regarding the Supreme Court’s ruling, Miller stated:

It was nine-zero in our favor against the District Court ruling saying that no District Court has the power to compel the foreign policy function of the United States. As Pam said, the ruling solely stated that if this individual—at El Salvador’s sole discretion—was sent back to our country, that we could deport him a second time. No version of this legally ends up with him ever living here because he is a citizen of El Salvador.

The Supreme Court did not rule in the Government’s favor at all, let alone nine-zero. With the exception of the two relatively technical aspects described above, the Supreme Court upheld the District Court order challenged by the Trump Administration in its entirety. Miller’s statement that it was nine-zero in their favor is a straight-up lie.

By claiming that the Supreme Court ruled that “no district court has the power to compel the foreign policy function of the United States,” Miller is bastardizing the Supreme Court’s recognition of the “deference owed to the Executive Branch in the conduct of foreign affairs” from a necessary factor that the District Court must consider on remand into a cut-and-dried edict that the District Court cannot order the Trump Administration to do anything under the circumstances of this case. This is typical of the zero-sum approach often employed by the Trump Administration. It is also in flagrant disregard of the plain language of the Supreme Court’s April 10 order which directs the Trump Administration to “take steps” in furtherance of the underlying order to facilitate Abrego Garcia’s release from custody in El Salvador. Miller’s mischaracterization of the Supreme Court’s ruling in this regard is, at best, a disingenuous twisting of the truth. At worst, it is another straight-up lie.

Miller’s statement that the only thing the Supreme Court ordered was that, if Abrego Garcia was sent back to the United States “at El Salvador’s sole discretion,” the Government could deport him a second time is incredibly problematic. It is true that, if Abrego Garcia were to be returned to the United States, the Government could immediately institute proceedings to remove him. The Supreme Court’s April 10 order explicitly states that, upon Abrego Garcia’s return to the United States, the Government must “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” This includes conducting proceedings to have Abrego Garcia lawfully deported from the United States. It also necessarily requires that the Government live up to its obligation to provide Abrego Garcia with “due process of law,” which includes notice and an opportunity to be heard. Following such proceedings, if this case were to ever get to that point, Miller’s declaration that “no version of this legally ends up with him ever living here” may, in fact, turn out to be true. Be that as it may, the language in the Supreme Court’s April 10 order reflects its judgment that the procedures mandated by U.S. law are a necessary prerequisite to such a result.

Miller’s claim that the Supreme Court ruled that the matter is “at El Salvador’s sole discretion” suggests that the United States’ role in this matter is purely passive, as if the Trump Administration and the Salvadoran government occupy distinct and separate vacuums in regards to the Abrego Garcia matter and that the ball, so to speak, is entirely in El Salvador’s court. Miller’s comments constitute a figurative shrug of the shoulders, as if to indicate that the Trump Administration is powerless to act and that the matter is completely out of their hands.

In response to questions from reporters about what the Trump Administration intended to do in regards to the Supreme Court’s April 10 order, Miller pointed to President Bukele and declared:

That is the President of El Salvador. Your questions about, per the court, can only be directed to him.

This was a surreal moment. Reporters were in the White House, in the presence of the President and Vice President of the United States, along with various cabinet-level officials, and were asking questions about how the President’s Administration intended to comply with a United States Supreme Court order that, on its face, calls for some form of action on the part of the Administration. In response to the reporters’ questions, Stephen Miller, one of the President’s senior advisors, told them that, “per the court,” they could not even ask the Administration about it and could only direct their questions to the President of El Salvador. By claiming that that was what the Supreme Court’s April 10 order said (that is what “per the court” means), there is no question that Miller was telling a bald-faced lie.

Following Miller’s lie that the Supreme Court’s April 10 order provided that any questions about Abrego Garcia’s release “can only be directed to” the President of El Salvador, a reporter was allowed to ask President Bukele directly whether he would be willing to return Garcia to the United States. President Bukele responded as follows:

“You’re not suggesting that I smuggle a terrorist into the United States? How can I return him to the United States? Do I smuggle him into the United States? Of course I’m not going to do it, it’s like, the question is preposterous. How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.”

With all do respect to President Bukele, it is his answer that is preposterous. Smuggle a terrorist into the the United States? What is President Bukele talking about? Stephen Miller had just stated outright that Abrego Garcia could be returned to the United States at El Salvador’s “discretion.” Under what conceivable scenario would President Bukele have to “smuggle” Abrego Garcia into the United States? President Bukele claims that “I don’t have the power to return him to the United States.” He doesn’t have the power? Stephen Miller had just stated in his presence that he has all the power. President Bukele’s claims that he would have to “smuggle” Abrego Garcia into the United States and that he has “no power” to return him are truly preposterous.

President Bukele’s response is not unlike Miller’s claim that the Trump Administration’s only option pursuant to the Supreme Court’s April 10 order is to wait passively and see what, if anything, El Salvador might do. Miller claims that—“per the court”—there is nothing the Trump Administration can do. President Bukele claims that there is nothing he can do—that he is powerless. Why are both sides holding up their hands and claiming that “there’s nothing we can do”? Miller could have said: “President Trump does not want Abrego Garcia returned to the United States and he will take no steps to facilitate his release from custody in El Salvador. Period.” Such a statement, in light of what the Supreme Court’s April 10 order actually says, would be in direct defiance of said order and, therefore, problematic. On the other hand, it would be consistent with the position that the Trump Administration is actually taking. Likewise, President Bukele could have said: “I don’t care what your Supreme Court says. I don’t want to release Abrego Garcia and I’m not going to.” Instead, President Bukele, like Miller, is taking the position that it’s somehow out of his hands. Why?

It is true that neither the Supreme Court, nor the Trump Administration for that matter, can order El Salvador to return Abrego Garcia to the United States. However, the United States is paying El Salvador six million dollars in connection with its willingness to house persons deported from the United States—including Abrego Garcia—in its detention facilities. Anyone who watched video of the White House event on April 14 could clearly see that President Trump and President Bukele appear to be on very friendly terms. Indeed, Homeland Security Secretary Kristi Noem stated publicly on April 15, 2025, that:

El Salvador has been a fantastic partner and when I was in El Salvador visiting with President Bukele we talked about the fact that he would accept more flights, would accept more individuals into CECOT. So I’m looking forward to that partnership continuing.³

Apparently, the Trump Administration and El Salvador are in the midst of a “fantastic partnership” that the United States Secretary of Homeland Security is “looking forward” to continuing. Under such circumstances, which include the aforementioned six million dollars that the United States is paying El Salvador, it is hard to fathom how the author of “The Art of the Deal” could not accomplish—with relative ease—the release of one inmate from a “fantastic partner” with whom the Trump Administration is currently involved in a mutually beneficial arrangement that the inmate in question is unequivocally a part of. No one on either side has asserted that such a move would in any way disrupt the diplomatic relations or the “fantastic partnership” that exists between the United States and El Salvador. Yet both sides are throwing up their hands and claiming that “there’s nothing we can do.” Why?

The day after the White House event, on Tuesday April 15, Stephen Miller appeared on Fox News⁴ and made additional statements about the Abrego Garcia case:

“We won the Supreme Court case. Clearly, nine-zero. A district court judge said, unconscionably, that the President and his administration had to go into El Salvador and extradite one of their citizens, an El Salvadorian citizen, so that would be kidnapping, so we have to kidnap an El Salvadorian citizen against the will of his government and fly him back to America, which would an unimaginable act and an invasion of El Salvador’s sovereignty. So we appealed to the Supreme Court and it said clearly no district court can compel the President to exercise his Article II foreign powers in any way whatsoever.

“They said the most that a court could ever compel you to do would be to facilitate return, which would basically mean if El Salvador voluntarily sends him back, we wouldn’t block him at the airport, we would put him back into ICE detention and then he would be deported back to either El Salvador or somewhere else. The Supreme Court said that that is the most that the government could be expected to do. So we won the case handily. The misreporting on this has been atrocious.”

By these statements, Miller was basically doubling down on his comments from the day before. I shan’t regurgitate the analysis I made above, other than to remind the reader that the Trump Administration clearly did not “win” the Supreme Court case, handily or otherwise, nor did the Supreme Court put the restrictions Miller claims on what the District Court could order. But Miller also added a new dimension by claiming that “[t]he misreporting on this has been atrocious.” Given how misleading and untruthful Miller has been about the Supreme Court’s April 10 order, his redirection of blame onto the media should be extremely troubling to any American who professes to believe in “The Rule of Law.” Anyone who knows how to read can examine the Supreme Court’s order themselves and draw their own conclusions. But how many people will actually do so? On the other hand, how many people who can’t be bothered to actually read the Supreme Court’s April 10 order watched Miller on television or YouTube and blindly accepted his claims as true and scoffed at the “fake news”? No one needs to rely on any “media” to know what the Supreme Court’s April 10 order actually says—all one has to do is access the order and read it. However, in the cable news/podcast/internet world in which we currently live—in which screens and headphones often triumph over written text—I fear that too few people will actually do so.

Miller made other statements on April 15 that go well beyond being merely troubling. Relative to whether Abrego Garcia had been improperly sent to El Salvador, Miller told Bill Hemmer of Fox News that:

“He was not mistakenly sent to El Salvador.”

“A DOJ lawyer, who has since been relieved of duty, a saboteur, a Democrat, put into a filing incorrectly that this was a mistaken removal. It was not. This was the right person sent to the right place.”

These statements are both flagrant lies.

The Supreme Court’s involvement in the Garcia case was instituted when the Trump Administration filed an application with the Court on March 24, 2025. The application is publicly available online.⁵ The application was signed by D. John Sauer. In 2017, Sauer was appointed to serve as the Solicitor General of Missouri under then-Missouri Attorney General Josh Hawley. Thereafter, Sauer personally represented Donald Trump during the proceedings that resulted in the Supreme Court’s 2024 ruling regarding presidential immunity. Sauer currently serves as the Trump-appointed Solicitor General of the United States. No one can credibly claim that D. John Sauer is anything other than solidly pro-Trump.

In his March 24 filing, on page three, Sauer wrote that:

“[T]he United States concedes that removal to El Salvador was an administrative error.”

Anyone can access Sauer’s application online and see for themselves what he wrote. Trump’s hand-picked Solicitor General and former personal lawyer has publicly acknowledged that Abrego Garcia’s removal to El Salvador was an “error.” This was undoubtedly the basis for the Supreme Court declaring in its order that the removal was “therefore illegal.” Stephen Miller’s statements that Abrego Garcia’s was not mistakenly sent to El Salvador is a flagrant lie.

But Miller doesn’t leave it at that. In addition to disavowing the easily verifiable fact that President Trump’s hand-picked Solicitor General and former personal lawyer admitted in his application to the Supreme Court on behalf of the Trump Administration that Abrego Garcia’s removal was an error, Miller blames any public impression that Abrego Garcia’s removal may have been erroneous on a DOJ lawyer who, Miller claims, “incorrectly” indicated in a court filing that Abrego Garcia was mistakenly removed. Miller then identifies the transgressor as “a saboteur” and “a Democrat” who has since been relieved of duty. This is another flagrant lie.

What does it say when Stephen Miller, one of President Trump’s most senior advisors, denies a mistake that the President’s own Solicitor General has already admitted in writing and then blames the whole thing on a Democratic “saboteur” who somehow infiltrated the Trump Administration? In a world where too many people automatically accept statements made by politicians they support and reject the statements of those they don’t, where too many people have been conditioned to trust certain media outlets and distrust others based on their politics, and where too many people don’t take the time to read the (sometimes lengthy and/or complex) written texts that usually underlie the online and onscreen chatter about legal and constitutional issues before the United States Supreme Court, it doesn’t take a rocket scientist to figure out that Stephen Miller probably determined that he had more to gain than lose by lying.

The bottom line is that we are being lied to. Stephen Miller is unambiguously lying to the public about the Supreme Court’s April 10 order. More people need to recognize the fact and condemn it.

1. https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

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4. Please see YouTube clip in Footnote 3.

5. https://www.supremecourt.gov/DocketPDF/24/24A949/354843/20250407103341248_Kristi%20Noem%20application.pdf