“This is a path of perfect lawlessness.” 

That’s not some online Resistance warrior. Those are the words of Judge Harvie Wilkinson. A Reagan appointee, he is arguably the single most revered federal appellate judge of his generation in the conservative legal and political universe. This is the same jurist who ruled in 2002 that the United States could indefinitely detain an American citizen captured in Afghanistan as an enemy combatant, a finding that was later overturned by the Supreme Court. Yet for Wilkinson, the Kilmar Abrego Garcia case poses an untenable threat to the judicial system. 

As the standoff escalates between the Executive and Judiciary Branches over the fate of Abrego Garcia, where, exactly, could this “path of perfect lawlessness” ultimately lead? How might it all end for the individual at the heart of this legal dispute, and how does each potential outcome alter the balance of power between the president and the courts? Let’s consider the three most likely potential end results. 

The Status Quo: Passive-Aggressive Defiance

The Supreme Court has instructed that the administration must “facilitate” Abrego Garcia’s return to the United States from a prison in El Salvador. But, crucially, the justices declined to adopt the lower courts’ instruction that the government “effectuate” Abrego Garcia’s return. The Supreme Court drew this distinction because, in its view, while the courts can compel the Executive Branch to take certain domestic actions, it would violate separation-of-powers principles for any judge to definitively instruct the president to reach a particular foreign policy outcome. Hence, “facilitate” (help along) but not quite “effectuate” (make it happen).

The practical problem, of course, is that “facilitate” is in the eye of the beholder. There’s no question that the government illegally sent Abrego Garcia to El Salvador, contrary to a 2019 withholding order prohibiting his deportation specifically to El Salvador. By any measure of fairness and good faith, the administration should now clean up its own mess. Instead, the government has chosen to give “facilitate” the narrowest possible interpretation, reading it only to require that it “remove any domestic obstacles” to Abrego Garcia’s return. The administration maintains that it need not affirmatively seek his return (which would almost certainly do the trick, given that the U.S. is paying El Salvador to rent the prison space where he is currently being held). Rather, it’s enough in the administration’s view to promise that, were Abrego Garcia somehow to materialize in U.S. custody without any such request, they’d let him hop on a government plane back to American soil. 

The district court judge, Paula Xinis, is having none of it. She has set an aggressive discovery schedule to extract key facts about how the original error occurred around Abrego Garcia’s deportation to El Salvador, and what the government has done to fix it. But the administration has made clear it intends to obfuscate and slow-play. Assuming that continues, the ultimate result in this scenario could be a series of judicial reprimands: contempt findings and accompanying fines, scalding court rulings, referral of bad actors to inspectors general and bar licensing committees. But ultimately in this scenario, the will of the Executive Branch prevails and Abrego Garcia remains in El Salvador.

The Constitutional Crisis: Aggressive Defiance

The courts also might escalate their current (likely futile) efforts to enforce the squishy “facilitate” mandate and start issuing more direct orders to the Executive Branch. Judge Xinis could, for example, instruct the administration to affirmatively request Abrego Garcia’s return, or to stop payments to El Salvador until he is returned (both suggestions floated by Professor Steve Vladeck in his indispensable Substack). And if the case makes its way back up the appellate ladder, the courts might change their view and take a harder line towards the Executive Branch. 

But it seems entirely unlikely that even ratcheted-up orders from the courts will move the Trump administration towards full compliance. They’re barely observing the current order to “facilitate” Abrego Garcia’s return, and there’s every reason to believe the administration would simply refuse if ordered to take some specific, affirmative step in its handling of foreign affairs. 

In this scenario, we’d arrive at a stalemate. I’m generally among the last to invoke the specter of a constitutional crisis, but if the courts – especially the Supreme Court – were to explicitly order the Executive Branch to take some specific action, and the administration flatly refused, then we wouldn’t know what happens next. That would plunge us into a genuine crisis in which the Executive Branch unilaterally elevates itself above the law, and the judiciary is left without meaningful recourse. 

Once again, the end result for Abrego Garcia is the same: He remains in El Salvador while the showdown plays out, and likely stays there unless the administration has a drastic change of heart and chooses to comply in good faith with legal commands from the courts. 

The Tactical Drawdown: Return (and Likely Re-Deportation) 

A core problem for Abrego Garcia is that he lacks legal status in the U.S. beyond the withholding order that provides he can’t be deported to El Salvador. He’s neither a visa holder nor a legal permanent resident nor a U.S. citizen. 

Thus, if the administration eventually concludes that a prolonged showdown in the courts will inflict unsustainable political costs, it could make a practical move to end the legal battle: It could bring Abrego Garcia back to the U.S. and immediately begin the process of deporting him to any country other than El Salvador. Abrego Garcia’s legal team would surely challenge his ongoing detention and would argue that the administration has offered no substantive evidence of gang ties or criminality. But the cold reality for Abrego Garcia is that he can be deported even without evidence of criminality or other wrongdoing. 

You’ll notice one scenario that’s not among our listed possibilities. The Trump administration will not admit its mistake, correct it, bring Abrego Garcia back, and allow him to remain in the U.S. The government could have done that right away; they initially acknowledged “administrative error” in the deportation of Abrego Garcia (and promptly fired the Justice Department attorney who made this truthful in-court concession). But the fleeting admission that the government “screwed up” (as Judge Wilkinson put it) was unaccompanied by remedial action. 

Now the moment has passed and the administration digs in deeper by the day. Attorney General Pam Bondi flatly declared this week that “He is not coming back to our country…There was no situation ever where he was going to stay in this country. None, none.” Abrego Garcia has become a political pawn – through none of his own doing, and to his own misfortune – and there’s zero chance the administration lets him return to his former life.

In the end, we’re left with three plausible endgame scenarios. None are good for Abrego Garcia or for our judicial system. The Trump administration made this mess, and now they’ve chosen to go on the attack rather than to fix it. 

On Thursday, the court of appeals denied the administration’s appeal of Xinis’s order compelling discovery. Once again, Wilkinson captured the moment perfectly: “Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both…The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.” 

Wilkinson closed on a note of optimism, expressing his hope that “our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.” I hope he’s right and the Trump administration comes to its senses. But I wouldn’t bet on it.