A note about injunctions in the context of the Abrego Garcia case

What courts can and cannot order - and what those injuncted can and should do

In the United States the constitutional crisis seems to have intensified overnight, with the US government appearing to flout an injunctive order of the federal court to facilitate a deportee’s return - an order which has been upheld 9-0 by the US supreme court.

The case is that of Kilmar Abrego Garcia (as you can see from that Wiki page, his name has various versions, and this is the version which is preferred on that site, and it is there shortened to Abrego Garcia, which is also how the courts refer to him).

On 15 March 2025 he was unlawfully removed from the United States by the US government and deported to El Salvador.

The removal was unlawful as it was contrary to a court withholding order - and the US government has openly admitted that the removal was a mistake.

Abrego Garcia is now in the notorious Center for Terrorism Confinement (CECOT) in El Salvador, despite him not having any criminal record or other determination against him. He has not even been charged with anything.

On 7 April 2025 a federal court ordered that the US government “facilitate and effectuate” his return.

On 10 April 2025 the US Supreme Court unanimously upheld this order in respect of facilitating his return - though the court also held the term “effectuate” was unclear and required clarification.

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Pausing at this point, why did the federal court in Marlyand not simply order the US government to return Abrego Garcia?

Why even add the words “facilitate and effectuate”?

Why not just say that the US government is ordered to facilitate and effectuate the return of Abrego Garcia?

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Here we have to look at what injunctions can and cannot do.

Injunctions are powerful orders of any court.

An injunction typically fixes upon person [x] and if that person does not comply with the order, then [x] is in contempt and can be punished by the court.

The historical roots of the injunction in England go back to the old days of equity where the court, on behalf of the crown, would order that a person act in accordance with their (supposed) conscience - to do what was conscionable.

Of course, like a lot of equity, it was a fiction - those injuncted may or may not have any conscience about doing or not doing something - but that was the legal theory.

It is an order to ensure a person does what the court considers they should be doing.

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In simple cases, an injunction will be along the lines of [x] should or should not do something.

The assumptions here are that [x] is subject to the jurisdiction of the court and what [x] is being ordered to do (or not do) is within the control of [x].

But sometimes things can get more complicated.

What if [x] is not subject to the jurisdiction of the court?

What if [x] is being ordered to do something outside of their control?

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Consider the following situation:

[x] is in control of another person [y]

[x] removes [y] from the jurisdiction of the court by deporting [y] to country [z]

[x] no longer has control of [y]

[z] now has control of [y]

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In this situation the court cannot order [x] to return [y] because [x] no longer has control of [y]. Returning [y] is no longer within the power of [x].

But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.

Therefore the court cannot simply order [x] to return [y].

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But what happens if [x] has acted unconscionably? Is the court impotent?

Well, the court can order [x] to do what they can to return [y].

In England, for example, a court may order [x] to use their best endeavours to procure the return of [y]. [x] may not be capable of being ordered to return [y] but they can be ordered to do everything they can do.

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Going back to the Abrego Garcia case, the federal court was no doubt aware that they could not simply order his return.

That is why the court ordered the US government to facilitate his return. The court also ordered the US government to “effectuate” his return, though for many this is a less clear word, though it is not absolutely unclear.

But the word “facilitate” was probably enough - anything covered by the one word would generally be covered by the other.

If the US government, for example, had contractual or other powers to insist to El Salvador that Abrego Garcia be returned, then that should be done.

The fact that he is outside the jurisdiction of the federal court does not mean the US government can now just shrug and not do anything.

The US government is required to do what they can.

And by further order of the court, the US government is now also required to give progress reports on what they are (not) doing to facilitate the return of Abrego Garcia.

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The US government does not want to do this.

As reported overnight by Aaron Reichlin-Melnick:

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It would appear from the news reports that the US government is not taking the court orders in this case seriously - that they are flatly refusing to facilitate the return of Abrego Garcia.

The US government submission is here.

You will see they are not saying that they are breaching the order - but one would expect that.

You will see that they are quibbling about what the word “facilitate” means.

Formally, at least, the government claims it is not in breach - they say that the order has no application.

The US government also do not seem to be giving the updates required by the court - at least not in any meaningful way.

The impression conveyed is that the US is flouting the order - and that, even if it were within their power to “facilitate” the return of Abrego Garcia that they will not do so.

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What will happen next?

If the US government is flouting the order, which appears to be the case, then the constitutional crisis in the United States is intensifying.

Perhaps the US government will successfully appeal to the Supreme Court and that court construes the order and the word “facilitate” to mean something other than the ordinary meaning of the order and indeed the word “facilitate”.

Perhaps the court will punish those responsible at the US government for contempt.

Perhaps even Abrego Garcia will be returned.

It is in the nature of a constitutional crisis that one cannot predict the next events to unfold - for if one could predict what will happen next then it would not be a crisis.

Perhaps nothing dramatic will happen at all - and this will be another quiet tug on the fabric of the constitution the effects of which will worsen over time.

But it is hard to see anything good coming of this.