The Supreme Court is about to decide whether the Trump administration can exile Americans to a gulag overseas and then leave them there.
The Trump administration wants everyone to believe that the case challenging its deportation of Kilmar Abrego Garcia to El Salvador’s infamous Centro de Confinamiento del Terrorismo, or CECOT, is about the government’s right to deport undocumented immigrants, or gang members, or terrorists. But it’s actually about whether the United States government can kidnap someone off the street and then maroon them, incommunicado, in a prison abroad with little hope of release. Human-rights groups have said that they have yet to find anyone freed from CECOT, and the Salvadoran government has previously said anyone imprisoned there will “never leave.”
Today, the Trump administration asked the Supreme Court to lift a federal-court order telling the administration to retrieve Abrego Garcia. This afternoon, Chief Justice John Roberts blocked the order temporarily, pending further decision. As my colleague Nick Miroff reported, the Trump administration acknowledged in court that Abrego Garcia was deported because of an “administrative error.” Abrego Garcia has been in the U.S. since he was 16, having fled El Salvador and come to the U.S. illegally after gangs threatened his family. He is married to an American citizen, and has a 5-year-old child. In 2019, a judge gave him a protected status known as “withdrawal of removal,” ordering the government not to send him back to El Salvador. The Trump administration has alleged that Abrego Garcia is a member of the gang MS-13, based on the word of a single anonymous informant six years ago, and the fact that Abrego Garcia was wearing Chicago Bulls attire.
[Adam Serwer: Trump’s Salvadoran gulag]
In its majority opinion rejecting the government’s argument, though, judges from the Fourth Circuit Court of Appeals wrote that the record “shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life,” and that “if the Government wanted to prove to the district court that Abrego Garcia was a ‘prominent’ member of MS-13, it has had ample opportunity to do so but has not—nor has it even bothered to try.” Abrego Garcia is not an exception—an analysis by CBS News found that three-quarters of the more than 200 men deported to El Salvador lacked criminal records.
Even though the Trump administration conceded that Abrego Garcia was deported by mistake, it is insisting that federal courts cannot order his return. “A judicial order that forces the Executive to engage with a foreign power in a certain way, let alone compel a certain action by a foreign sovereign, is constitutionally intolerable,” it said in a court filing. The implications of this argument may not be immediately obvious, but if federal courts cannot order the return of someone exiled to a foreign gulag by mistake, then the administration is free to exile citizens and then claim they did so in error, while leaving them to rot.
As the legal scholar Steve Vladeck wrote, “A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of ‘administrative error,’ and thereby wash its hands of any responsibility for what happens next.” If the Trump administration prevails here, it could disappear anyone, even an American citizen. Several have already been swept up and detained in recent ICE raids. Whether you can imagine yourself in Abrego Garcia’s position or not, all of our fates are ultimately tied to his.
Deporting people without due process is what’s actually “constitutionally intolerable,” given that the Fifth and Fourteenth Amendments guarantee due process of law. Disappearing people off the street and exiling them is “constitutionally intolerable” for the same reasons. Sending people who have never been convicted of any crime to CECOT, a prison where advocates allege that inmates are routinely abused, may also be “constitutionally intolerable,” given the Eighth Amendment’s prohibition on cruel and unusual punishment. But whatever their constitutional status, all of these things should be morally intolerable to any decent human being.
[Read: An ‘administrative error’ sends a Maryland father to a Salvadoran prison]
This should be one of those cases in which the justices are unanimous. If the Constitution’s commitments to due process mean anything, they should mean that the government cannot send people to be imprisoned by a foreign nation without a shred of evidence that they’ve committed any crime. American “history and tradition” produced a system designed to reject arbitrary powers such as these, with the conscious fear that “parchment barriers” would provide little protection against an “overbearing majority” willing to violate rights. Nevertheless, I have little doubt that someone will try to argue that the Framers who wrote two due-process clauses into the Constitution actually loved disappearing people to foreign prisons.
“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 J. Harvie Wilkinson III, who was appointed to the bench by President Ronald Reagan, wrote in his concurrence. “It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.”
This is eloquent and correct, but this lawlessness is happening precisely because the nation’s highest court condoned it in advance. The right-wing justices on the Roberts Court have repeatedly rewritten the Constitution to Donald Trump’s benefit, first by nullifying the anti-insurrection clause in the Fourteenth Amendment, and then by inventing an imperial presidential immunity that is nowhere in the text of the document. It is no surprise that Trump is now acting as though he is above the law. After all, the Roberts Court all but granted him permission.