Chief Justice Roberts’s temporary freeze of a deadline in the emergency appeal filed by the Trump administration to the Supreme Court over the fate of a mistakenly deported Salvadorean paints in sharp relief the emerging clash between the White House and the federal judiciary.

The petition hit the high court’s docket hours before a midnight deadline, imposed by Judge Paula Xinis, for the administration to return to Maryland from El Salvador by Monday one Kilmar Armando Abrego Garcia. The government has conceded that the father of three was deported “because of an administrative error” but insists that an American court cannot order him retrieved from foreign soil.

The solicitor general, John Sauer, writes in the government’s brief to the Nine that “The Constitution charges the president, not federal district courts, with the conduct of foreign diplomacy and protecting the nation against foreign terrorists, including by effectuating their removal.” He calls the order to return Mr. Abrego Garcia, who entered the country illegally but whose removal was blocked by an immigration judge in 2019, “unprecedented.”

Judge Xinis called the mistaken deportation and subsequent refusal to rectify it a “grievous error” that “shocks the conscience.” She accused the administration of delivering Mr. Abrego Garcia “into one of the most dangerous prisons in the Western Hemisphere”  — a so-called “mega-prison” known as the Center for Terrorism Confinement. One of President Trump’s senior advisers, Stephen Miller, declared on X in relation to this case that the “Marxist judge now thinks she’s president of El Salvador.”

Minutes before Mr. Sauer’s high court appeal, another appellate tribunal, the Fourth United States Appeals Court, declined to overturn Judge Xines’s order to return Mr. Abrego Garcia to this country. The three judge panel was unanimous. One of the riders, Stephanie Thacker — an appointee of President Obama — writes that the Trump administration’s arguments “that the federal courts are powerless to intervene, are unconscionable.” 

Judge Thacker adds that  “United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process” and determines that the “irreparable harm in this case is the harm being done to Abrego Garcia every minute he is in El Salvador.” She also ordered Washington to exert “the authority and control it must have retained over the detainees it is temporarily housing in El Salvador.”  

Mr. Sauer, though, writes that “The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge’s bidding.” Mr. Abrego Garcia was not deported under the Alien Enemies Act, whose use is also being challenged in the Fourth Circuit by some of those deported to the same prison in El Salvador. The government contends that he is a “member of a designated foreign terrorist organization, MS-13.”

Judge Xines cast doubt on that claim, reckoning that the evidence for membership “consisted of nothing more than his Chicago Bulls hat and hoodie and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”

The solicitor general writes that “the Constitution vests the President with control over foreign negotiations so that the United States speaks with one voice, not so that the President’s central Article II prerogatives can give way to district-court diplomacy.” The government rejects the proposition that federal judges “have extraterritorial jurisdiction over the United States’ diplomatic relations with the whole world.”

At least five justices must vote to grant a stay in an emergency petition like the one requested here by the Trump administration. The government can also appeal the ruling by the panel of the Fourth Circuit by asking for  en banc, meaning a review by the full tribunal.