A MARTÍNEZ, HOST:
All right. Let's go further into that relationship between the Trump administration and the courts with Kate Shaw. She's a professor of law at the University of Pennsylvania. Professor, though a U.S. district judge in Maryland ordered the administration to facilitate the return of Kilmar Abrego Garcia, the White House argues the word facilitate does not mean it has to do too much. If nothing changes, did it violate a court order?
KATE SHAW: You know, so far, it does look very much like yes. And I think that's why the district judge is giving the administration another opportunity to essentially show that it is doing something to be responsive to, first, the district court order and then the Supreme Court unanimous opinion, finding that the district court did have the authority to direct the administration to seek to facilitate Mr. Abrego Garcia's release or return. There was this distinction the Supreme Court drew. Yes, the district court had the order - had the power to order the administration to facilitate return. It may not have had the power to effectuate - to order the administration...
MARTÍNEZ: Yeah.
SHAW: ...To effectuate the return, and that might be a meaningful distinction - facilitate on the one hand, effectuate on the other.
MARTÍNEZ: So is this a semantics thing at this point?
SHAW: The administration, I think, thinks so. I mean, I think that it really goes to this kind of sensitive line that district judges are concerned about crossing. Presidents have a great deal of authority when it comes to conducting foreign affairs and diplomacy, but they don't get a pass on abiding by the Constitution when they're conducting foreign affairs and diplomacy. And so that's the line the district court needs to walk - respecting the president's primacy when it comes to diplomacy but insisting that the Constitution applies. And here, there's every indication that basic constitutional requirements of due process were not observed. And that's what the district court says the administration is obliged to honor, even as she tries to continue to respect the administration's authority to decide how exactly to carry out the directive to facilitate the return.
MARTÍNEZ: So if indeed nothing happens between now and forever, I guess, I mean, what recourse do the courts have if the administration refuses to comply with its demands?
SHAW: Well, I think that the - again, the district court is giving the administration more opportunities to comply. And if it continues to be less than fully compliant, I think there's a very good chance the district court finds particular administration officials in contempt of court. So that could include imposing fines. It could, in theory, include actually ordering the incarceration - of holding in the court government officials who are in contempt of court orders. But I think that the district court wants to make sure that there's a rock-solid foundation before taking that quite dramatic step of holding officials in contempt of court. And I think there's a very likely chance that we're going to see this case back before the Supreme Court in a matter of, you know, weeks, if not even sooner, if the administration simply refuses to comply. So we have, you know, two weeks in which...
MARTÍNEZ: Yeah.
SHAW: ...There's this opportunity for expedited discovery. If the administration just says, we're not giving you anything, then I think that a lawyer's appeal on the case goes right back up before the Supreme Court justices.
MARTÍNEZ: You mentioned expedited discovery. That judge ordered two weeks, a two-week period of this - depositions from top officials - to determine what has or has not been done. So how likely is it that that will yield answers?
SHAW: You know, at this point, there's no real reason to think that there's going to be much useful information provided because there have already been a number of status reports in which officials have basically said, nothing to report. He's alive. He remains in this prison in El Salvador, but we don't have anything else to tell you. And I think that the meaning there is that we're not doing anything to facilitate the return. And that does seem to be in pretty clear defiance of both the district court and the Supreme Court's orders. So, if that's all they continue to say, then, again, I think we're going to be back before the justices. And we will see if the justices say, we meant it when we said this last time. Doing nothing was not a reasonable interpretation of our order. And then I think we'll see if the administration finally actually takes some meaningful steps to facilitate return.
MARTÍNEZ: We've heard the words constitutional crisis thrown around. I mean, how does this case line up with that?
SHAW: Honestly, I think we've been in a constitutional crisis for quite some time in that the administration has, you know, indicated a real willingness to violate statutes passed by Congress, to defy clear constitutional commands, and here to fail to comply with very clear directives from court. So, to my mind, a constitutional crisis doesn't begin and end with defiance of court orders. But I think in some ways, this is the clearest example of a constitutional crisis, when an administration is given clear instructions and refuses to abide by those. You know, it is saying, we are complying. Facilitate doesn't require much, and we are doing enough to basically be in compliance. But I think it's increasingly difficult to accept that that is actually what is occurring.
MARTÍNEZ: All right. That is Kate Shaw, professor of law at the University of Pennsylvania and a co-host of the "Strict Scrutiny" podcast. Professor, thank you.
SHAW: Thank you so much. Transcript provided by NPR, Copyright NPR.
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