At any moment, the Supreme Court will issue a decision in the case of Kilmar Abrego Garcia, a Maryland man whom the Trump administration admits itdeported to a notorious Salvadoran mega prison due to “administrative error.” The ruling could pose a make or break moment, not just for the life of Abrego Garcia, but for what kind of country we are going to be.
Less than three months into Trump’s second term, the stakes of litigation over its agenda are extremely high. If the Supreme Court requires the US government to facilitate Abrego Garcia’s rapid return to US soil, it will have held the line by requiring that the rule of law governs Trump’s deportation powers. But if the court halts Abrego Garcia’s return, the United States is on track toenter a dark new chapter in which anyone—noncitizens and citizens alike—can be shipped off to foreign prisons with no hope of return. These are the tools of control exercised by authoritarian regimes on other continents. But that doesn’t mean it can’t happen here.
“The government could whisk individuals to foreign prisons in violation of court orders and then contend…there is nothing that can be done.”
Abrego Garcia is an undocumented immigrant from El Salvador. In 2019, the government attempted to deport him and claimed, on very weak grounds, that he was a member of the MS-13 gang. On appeal, an immigration judge found that he faced “a clear probability of future persecution” if returned to El Salvador. The judge ordered that Abrego Garcia not be removed to El Salvador. The government never appealed. Abrego Garcia is married, raising three children, gainfully employed, and has never had a run-in with the law.
When the Department of Homeland Security picked him up in March and put him on a plane to El Salvador, it did so against the immigration judge’s clear order. The government itself concedes his removal was an “administrative error.” Yet, the government does not want to retrieve him and is fighting a judge’s order to bring him back. Instead, it argues that even if removed in error, the courts have no authority to facilitate a prisoner’s return from abroad. What’s done is done, Trump administration lawyers argue: once you arrive at El Salvador’s brutal labor camp, it’s as if the US government has thrown away the key.
If the Supreme Court accepts the government’s argument, it would destroy Abrego Garcia’s life. But under its logic, untold numbers of other noncitizens and citizens are in jeopardy of permanent and unlawful disappearance. It wouldn’t matter who you are. If the government scoops you off the street and ships you off to another country without providing a chance to make your case in court, there is nothing you, your family, or a judge could do. The president’s power over national security and foreign affairs, the government argues, cannot be impinged, even if it violated an individual’s constitutional rights to deport them. But this logic leads to a license for Trump to disappear anyone, possibly forever.
Constitutional law luminaries Erwin Chemerinsky, Martha Minow, and Laurence Tribe stress the gravity of this case in an amicus brief they submitted to the Supreme Court. If the administration’s argument prevails, they warn, “the Executive Branch would possess a shuddering degree of power—power that the President could wield in extreme and extraordinary ways, including against American citizens that the President simply disfavors.”
A three judge panel from the Fourth Circuit Court of Appeals unanimously rebuked the government’s arguments in a ruling that seized on the dystopian powers the government is seeking. “The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done,” Judge James Wilkinson warned in a concurrence. “It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.”
It’s no surprise that Wilkinson’s concurrence found its way into Abrego Garcia’s brief to the Supreme Court; In 2003, Wilkinson authored an opinion granting the federal government the power to indefinitely detain a US citizen without the opportunity to challenge their confinement in court if it designated him an “enemy combatant”—a decision overturned by the Supreme Court. If Wilkinson, a Reagan-appointee who has accorded the government extreme deference in the arena of national security and detention, can see that the Abrego Garcia case is a bridge to “perfect lawlessness,” then perhaps the Supreme Court will as well.
Abrego Garcia’s case was first filed in federal district court in Maryland, where a judge ordered the government to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.” The government appealed to the Fourth Circuit. Then, on April 7, before the circuit court had issued a decision, the government appealed to the Supreme Court, asking the highest court to immediately halt the lower court’s order so that the government wouldn’t have to retrieve Abrego Garcia that day. It also asked the high court to fully vacate the district court’s order. After this appeal was filed, the Fourth Circuit released its opinion siding with Abrego Garcia. As Stephanie Thacker, a judge on the appellate court, explained in that opinion, “The irreparable harm in this case is the harm being done to Abrego Garcia every minute he is in El Salvador.”
“It takes no small amount of imagination to understand that this is a path of perfect lawlessness.”
But shortly after that opinion was issued, Chief Justice John Roberts halted the lower court’s order temporarily while the highest court decides whether to grant the administration’s request for a fuller rebuke of the lower court. It is this decision that will indicate whether or not there is a meaningful right to challenge detention before removal to a foreign country or whether that right can be overridden by an alleged “administrative error.”
In a separate ruling Tuesday over challenges to removals to El Salvador under the Alien Enemies Act, the Supreme Court reaffirmed that every person transferred has the right to meaningfully challenge that removal in court. Abrego Garcia’s lawyers quickly filed a notice with the Supreme Court to remind them that Abrego Garcia had the same right to challenge his removal but was denied it—a constitutional violation that must be remedied. Thus, the Abrego Garcia case is an immediate test of the Supreme Court’s own ruling: Will the right to challenge removal in court be one that can be denied by administrative error—either a genuine error or an alleged one?
It’s important to realize administrative errors are not that uncommon in immigration enforcement. For example, a Government Accountability Office report found that between 2015 and 2020, ICE likely deported 70 US citizens. The government can and does retrieve people from foreign countries after unlawful removal. Moreover, there no reason to believe the Trump administration wouldn’t make the same argument about people it has deliberately removed.
One reason to worry is the government’s response when a federal judge ordered it to turn around the planes taking hundreds of alleged Venezuelan gang members to El Salvador’s Terrorism Confinement Center, or CECOT, on the basis that the detainees were not afforded the opportunity to challenge their removal. The government made the decision not to turn the planes around, but instead to continue on to El Salvador, unload the planes, and place the detainees in the care of a foreign country. The president of El Salvador, Nayib Bukele, a leader who himself employs authoritarian tactics and illegal confinement to maintain control, mocked the efforts to stop the planes. He posted an article on X about the order to turn the planes around and commented “Oopsie… Too Late” followed by the tears of joy emoji often used to gloat over the suffering of others. Marco Rubio, the Secretary of State, retweeted him. Dodging a court order wasn’t an error, it was a joke.
“We are not stopping,” border czar Tom Homan said on Fox News two days later. “I don’t care what the judges think.”
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I think he is almost certainly still alive. The place is not a death camp. Although, if people die there, I'm sure no one involved is all that bothered by it.