The Constitutional Crisis Is Here
Between the path of outright defiance of the Supreme Court and following its order to “facilitate” the return of Kilmar Abrego Garcia from El Salvador’s infamous Centro de Confinamiento del Terrorismo (CECOT), the Trump administration has chosen a third way: pretending it is complying while refusing to do so.
During an on-camera Oval Office meeting with Salvadoran President Nayib Bukele, whom the Trump administration has paid to imprison immigrants deported from the United States it claims without evidence are gang members, President Donald Trump deferred to Attorney General Pam Bondi, who said the decision was Bukele’s.
“That’s up to El Salvador if they want to return him. That’s not up to us,” Bondi told reporters. “That’s not up to us. If they want to return him, we would facilitate it, meaning provide a plane.” Bukele, for his part, called Abrego Garcia a “terrorist,” saying to a reporter who asked if he would return him, “I hope you’re not suggesting that I smuggle a terrorist into the United States.” He added, “The question is preposterous.”
The bad faith of this exchange is obvious. Bukele has the power to free Abrego Garcia and send him back to the U.S. on an American plane without “smuggling” anyone or anything. But neither side wants that outcome, and so they are both pretending that it’s the other’s responsibility. It’s a game both sides are in on.
[Read: The confrontation between Trump and the Supreme Court has arrived]
Last week, the Supreme Court instructed the Trump administration to follow a lower court’s directive to “facilitate” Abrego Garcia’s return. Born in El Salvador, Abrego Garcia came to the U.S. illegally but was under a protective order from a judge who found that he had a reasonable fear of persecution from gangs if he returned to his home country.
The evidence that Abrego Garcia is a “gang member” or a “terrorist” is negligible. Since coming to the U.S. in 2011 when he was 16 years old, Abrego Garcia has married a U.S. citizen, had an American child, and maintained steady employment. But on March 15, he was sent to the Salvadoran prison without due process as part of the Trump administration’s “mass deportation” program, along with hundreds of other men, 90 percent of whom also have no criminal record. The only support for the idea that Garcia is a gang member is tenuous—he was identified as such by an anonymous informant in a 2019 immigration proceeding but has had no trouble with the law since. Like most of the men rendered to CECOT, Abrego Garcia has fewer criminal convictions than the current president of the United States. Even the Trump administration acknowledged in federal court that it had deported Abrego Garcia “in error.”
This morning, however, Trump’s adviser Stephen Miller claimed on Fox News that the acknowledgment that Abrego Garcia was wrongly deported had been made by a “saboteur” in the Department of Justice and that “he was not mistakenly sent to El Salvador”; he added that “this was the right person sent to the right place.” This is a lie—the admission of error was made by an ICE official in a court filing.
Since last week’s Supreme Court directive, Trump officials have harped on a line stating that the lower court should clarify its “directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Officials including Miller and Secretary of State Marco Rubio have interpreted that to mean that they do not have to follow the order at all. During the Oval Office meeting, Rubio chimed in to say that “no court in the United States has a right to conduct the foreign policy of the United States.”
In other words, the administration is following the Supreme Court’s ruling by ignoring it completely.
This rhetorical game the administration is playing, where it pretends it lacks the power to ask for Abrego Garcia to be returned while Bukele pretends he doesn’t have the power to return him, is an expression of obvious contempt for the Supreme Court—and for the rule of law. The administration is maintaining that it has the power to send armed agents of the state to grab someone off the street and then, without a shred of due process, deport them to a Gulag in a foreign country and leave them there forever. The crucial point here is that the administration’s logic means that it could do the same to American citizens—after all, if deporting someone under a protective order to a Gulag without so much as a hearing is a “foreign policy” matter with which no court may interfere, then the citizenship of the condemned person doesn’t matter.
Trump is already contemplating the possibility of deporting citizens. Aside from numerous public statements to that effect, Trump told Bukele, in an exchange posted on Bukele’s X feed, “Homegrowns are next. The homegrowns. You gotta build about five more places.” Loud laughter filled the Oval Office.
[Read: El Salvador’s exceptional prison state]
As Justice Sonia Sotomayor wrote in a statement joined by Justices Elena Kagan and Ketanji Brown Jackson accompanying the Supreme Court’s order last week, which was issued with no public dissents, “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” More broadly, this matter is no longer just about deportations or undocumented immigrants. The Trump administration’s defiance of a Supreme Court order is a new step into presidential lawlessness, in that it suggests that the administration will not abide by any court orders it does not feel like complying with.
To state the obvious, if the evidence against these men were ironclad, the Trump administration would not need to violate the Constitution to put them in prison. The reason it is deporting people to an overseas Gulag is because it wants to look like it is being tough on criminals without having to investigate whether the people it is being tough on have committed any crimes.
The Trump administration is defying a Supreme Court order to retrieve a man it marooned in a Gulag abroad, while pretending to comply with it. What it could do to him, it could do to anyone. More significantly, if the Trump administration can defy court orders with impunity, and Congress is unwilling to act, there is no reason for it to respect the constitutional rights of American citizens either. The Roberts Court will now have to decide whether to side with the Constitution or with a lawless president asserting the power to disappear people at will. This is not a power that any person, much less an American president, is meant to have.
