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The story of Kilmar Abrego Garcia—the Maryland father wrongly deported to a Salvadoran prison—has captivated the nation and spurred Democratic lawmakers into action, with Maryland Sen. Chris Van Hollen flying to El Salvador on Wednesday to try to get him freed. But the Supreme Court does not appear to appreciate the urgency of the crisis. Last week, the court struck a compromise in Abrego Garcia’s case that has left him trapped in prison: The majority faulted a federal judge for potentially interfering with diplomatic negotiations, declaring that she could not compel the U.S. government to “effectuate” his return, only to “facilitate” it, a distinction based in “due regard for the deference owed to the executive branch in the conduct of foreign affairs.” Predictably, the Trump administration has seized on this deferential language as a justification to do nothing to bring Abrego Garcia home. In offering Trump this opportunity, the Supreme Court very directly set different rules for President Donald Trump than it had for President Joe Biden, gifting the former freedom from judicial intervention into negotiations with a foreign nation.

The court’s profound solicitude for Trump’s power over foreign affairs marks a sharp break from its attitude toward Biden’s authority in this field, one that seems to reflect judicial hostility toward both immigrants and Democratic presidents. It rarely intervened when conservative federal courts repeatedly intruded into the Biden administration’s immigration policy—most notoriously, when U.S. District Judge Matthew Kacsmaryk effectively seized control over the southern border for nearly a year. In 2021, Kacsmaryk ordered the Biden administration to restart Trump’s Remain in Mexico program, an undertaking that required complex diplomatic negotiations with the Mexican government. He instructed U.S. officials to beg their Mexican counterparts for permission to house migrants from other countries in Mexican territory. He oversaw these weekly diplomatic talks between two sovereigns, subjecting U.S. officials to invasive interrogations about their goals and strategies. And he threatened to hold these officials in contempt if they failed to coax the Mexican government into a new agreement.

The Supreme Court allowed this arrangement to drag on for more than 10 months before finally putting a stop to it by a 5–4 vote that reflected, at most, mild concern over Kacsmaryk’s seizure of Biden’s foreign affairs authority. Its blasé attitude toward the episode could not stand in sharper contrast to its deep concern for the slightest encroachment into Trump’s prerogative over diplomatic negotiations in Abrego Garcia’s case. The court appears to apply different standards to Biden and Trump in the arena of foreign affairs, tying Biden’s hands while freeing Trump’s. And it is always immigrants who pay the price.

Kacsmaryk’s 10-month reign over border policy—with the Supreme Court’s permission—is all the more striking in light of what SCOTUS would not allow on Thursday. Abrego Garcia’s case should be simple: The government deported him to a Salvadoran prison by mistake, in contravention of a court order expressly forbidding his removal to El Salvador. He has never been accused of a crime or credibly linked to any gang. His deportation was, as the Supreme Court acknowledged, therefore illegal, and the government has, at a bare minimum, an obligation to bring him back. But SCOTUS couldn’t leave it at that. While the majority did order the Trump administration to “facilitate” Abrego Garcia’s return, it reproached the district court judge, Paula Xinis, for directing the administration to “effectuate” his return, too. That word, it warned, might suggest undue interference in delicate diplomacy, and so it had to go.

Now compare this alleged intrusion into foreign negotiations with what the Supreme Court greenlit four years ago. When he entered office, Biden sought to end Trump’s Remain in Mexico policy, under which the United States forced migrants to wait in Mexico while their asylum claims were adjudicated. The migrants affected by this policy were not Mexican citizens, but refugees from other countries—so holding them in Mexico required Mexican approval. Trump had obtained this approval, but it expired after the Biden administration worked with Mexico to disband the program.

Texas and Missouri filed suit in 2021, claiming the program’s disbandment was unlawfully “arbitrary and capricious.” They shopped their complaint to the federal court in Amarillo, Texas, where they were guaranteed to draw Kacsmaryk, an ultra-partisan Trump appointee (who would later attempt to ban mifepristone medication abortion nationwide). To nobody’s surprise, Kacsmaryk sided with Texas, issuing a nationwide injunction that forced the government to restart Remain in Mexico almost immediately. Biden’s Justice Department promptly begged the U.S. Court of Appeals for the 5th Circuit to freeze Kacsmaryk’s injunction, providing ample evidence that his order would “significantly harm our diplomatic relationships” and mandate complex “diplomatic engagement” with foreign sovereigns. The 5th Circuit refused a stay, blowing off these concerns in one brusque paragraph. Any harm to Biden’s foreign policy agenda, it asserted, was “self-inflicted,” because the government should have “simply inform[ed] Mexico” that terminating the program “would be subject to judicial review.”

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The Justice Department then asked the Supreme Court for emergency relief. Kacsmaryk’s decision, it wrote, “imposes a severe and unwarranted burden on executive authority over immigration policy and foreign affairs.” His injunction, DOJ wrote, wrested control of foreign policy “by requiring it to immediately negotiate with Mexico to reinstate” a dormant program— “effectively dictating the content of the United States’ negotiations with foreign sovereigns.” It marked nothing less than a grievous “intrusion into the executive’s management of foreign policy,” encroaching upon the core of his “constitutional authority.”

SCOTUS didn’t care. By a 6–3 vote, the Supreme Court refused to grant a stay; its bare-bones, one-paragraph order did not even address Kacsmaryk’s interference with the president’s power over international relations. All three liberal justices dissented.

The court’s inaction empowered Kacsmaryk to assert complete control over resumption of Remain in Mexico. He ordered U.S. diplomats to negotiate over the program with Mexico “in good faith,” demanding monthly status reports detailing exactly how they were implementing his commands and how much progress they were making. He forced the administration to spend millions of dollars rebuilding temporary structures that the government could use to adjudicate immigrants’ claims. He made the Justice Department tell him the precise number of migrants encountered at the border each month and exactly what the government did with each of them.

On top of these status reports, Kacsmaryk ordered ongoing updates on the administration’s “compliance” with his injunction—that is, detailed explanations of negotiations with the Mexican government to restart Remain in Mexico. These updates were accompanied by declarations from U.S. officials explaining how they were implementing the injunction. When Texas complained that they were not implementing it quickly enough, Kacsmaryk allowed the state’s lawyers to depose the federal officials, compelling them to turn over even more information about high-level diplomatic negotiations with the Mexican government. The lawyers and diplomats undertaking this task at Kacsmaryk’s insistence were subject to the constant threat of contempt and sanctions if they failed to meet his demands. Then–Solicitor General Elizabeth Prelogar later revealed that the judge had forced the Department of State and the Department of Homeland Security to hold weekly calls with “their counterparts in the Government of Mexico” to execute his extensive directives.

Eventually, Prelogar persuaded the Supreme Court to reconsider the case, centering Kacsmaryk’s hijacking of American diplomacy in her oral arguments. In June 2022, the court finally ruled for the government, albeit by a 5–4 vote. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett all dissented. Chief Justice John Roberts’ opinion for the court explained what should have been obvious all along: Kacsmaryk never had authority to order the resurrection of Remain in Mexico. Federal law says that the United States “may” send migrants back to Mexico during their immigration proceedings, not that it must. The statute, Roberts explained, “plainly confers a discretionary authority to return aliens to Mexico,” giving the government “a tool” that it “has the authority, but not the duty, to use.” Remarkably, the chief justice did not condemn Kacsmaryk’s lawless seizure of power over the border, noting only that it “imposed a significant burden upon the executive’s ability to conduct diplomatic relations.” He stopped far short of calling that “burden” unconstitutional.

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Compare this absolving language with the Supreme Court’s stern admonition to Judge Xinis last week in Abrego Garcia’s case. Xinis had clearly instructed the Trump administration to ask the Salvadoran government to send him back, but SCOTUS chose to nitpick her phrasing. The court warned that her directive to “effectuate” Abrego Garcia’s release “may exceed the district court’s authority” and had to be “clarif[ied]” with “deference” for the president’s “foreign affairs” powers. The predictable result has been days of spin and obfuscation from the Trump administration, which reinterpreted SCOTUS’s caveat as an excuse to do nothing at all.

Three years ago, Thomas, Alito, Gorsuch, and Barrett were unbothered by Kacsmaryk’s micromanagement of a complex international program that required another country to hold tens of thousands of migrants within its borders. They have surely forfeited their right to complain about Judge Xinis’ attempt to bring one innocent man home. Perhaps a majority believes that Trump deserves sweeping deference in foreign affairs, while Biden did not—or that the president only deserves this deference when he is trying to punish migrants rather than protect their rights. Whatever the reason for its disparate treatment, the Supreme Court has no standing whatsoever to limit Judge Xinis’ authority after letting one judge in Texas moonlight as shadow president.

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