“President Donald Trump has cracked down on immigration in his second term, deporting undocumented migrants and perhaps citizens next.
In the process, members of Trump’s administration have demonstrated an overt hostility to basic rights of due process.
On March 12, agents with Immigration and Customs Enforcement (ICE) arrested Kilmar Abrego Garcia, an undocumented immigrant from El Salvador. Three days later, the government deported him back to El Salvador to be held in the Terrorism Confinement Center (CECOT), an overcrowded and dangerous mega-prison where the country’s president offered to warehouse deportees from the U.S.
There is much to oppose in that action, perhaps most of all that Abrego Garcia—who had previously been granted a reprieve from deportation—was denied any semblance of due process when government agents grabbed him up, told him his protected status had been revoked, and shuffled him out of the country, all within the span of a long weekend.
The Trump administration contends Abrego Garcia is not entitled to due process, in part because he is a member of the violent street gang MS-13. “That may be true,” wrote Cato Institute scholar David Post. “The government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true.”
Nevertheless, the government is sticking by the claim.”
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“According to an April order by Judge Paula Xinis of the U.S. District Court of Maryland, Abrego Garcia immigrated from El Salvador to flee gang violence, settling in Maryland with his brother, a U.S. citizen. After he was arrested in 2019 and turned over to Immigration and Customs Enforcement (ICE) for deportation, he told an immigration judge he would be subject to gang retaliation if he was sent back. The judge denied his request for bond and ordered him detained “pending the outcome of his requested relief from deportation,” as Xinis wrote. (By itself, a denial of bond is not indicative that he presents any danger: “The immigration judge is only taking at face value any evidence that the government provides,” said David Bier of the Cato Institute. “It is not assessing its underlying validity at that stage.”)
Later that year, “following a full evidentiary hearing, the [immigration judge] granted Abrego Garcia withholding of removal to El Salvador,” which “prohibits [the Department of Homeland Security] from returning an alien to the specific country in which he faces clear probability of persecution,” Xinis added.”
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“Vance’s post is galling for how little he seems to care about due process, the constitutional provision nominally preventing the government from throwing any of us in prison for any reason it wishes. That this seems to reflect the general attitude of the administration in which he serves would be frightening even if not for the fact that its only justification is that it simply doesn’t make mistakes when identifying terrorists and gang members.
“Ask the people weeping over the lack of due process what precisely they propose for dealing with [former President Joe] Biden’s millions and millions of illegals,” Vance wrote. “And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year?”
This has nothing to do with deporting the undocumented: A judge already adjudicated Abrego Garcia’s case and granted him a reprieve from deportation. If the Trump administration had contrary evidence indicating he should instead be deported, then it should present that evidence in a court of law.
Instead, what evidence has been presented is flimsy, to say the least. “The ‘evidence’ against Abrego Garcia 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,” Xinis wrote. “No evidence before the Court connects Abrego García to MS-13 or any other criminal organization.”
Even what flimsy evidence there is has fallen apart in recent days: That single “vague, uncorroborated allegation” was lodged by Ivan Mendez, a Maryland police officer who arrested Abrego Garcia in 2019. Within days, Mendez was suspended, and would later be indicted, for giving “confidential information” about “an on-going police investigation” to “a commercial sex worker who he was paying in exchange for sexual acts,” according to the Prince George’s County Police Department.”
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“”When Garcia was arrested he was found with rolls of cash and drugs,” wrote Tricia McLaughlin, assistant secretary for public affairs at the Department of Homeland Security (DHS). “He was arrested with two other members of MS-13” while “wearing what is effectively MS-13’s uniform.””
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“wearing NBA merch is not a crime. And if Abrego Garcia were actually associating with MS-13 members, or if he were abusive to his wife, then these are details that would be extremely pertinent to bring up in a court of law.
Instead, the administration has obfuscated even in the face of judicial action. Earlier this month, the U.S. Supreme Court unanimously upheld a lower court order finding deportees were entitled to due process and instructing the government to “facilitate” Abrego Garcia’s return to the U.S. The administration even admitted in court filings that Abrego Garcia was deported “because of an administrative error.” (The attorney who filed the brief containing that language was apparently later suspended.)
Nevertheless, the administration insists it has no ability to retrieve Abrego Garcia from the Salvadoran prison where the U.S. government is currently paying $25,000 to house him—what Reason’s Damon Root called “a naked assertion of unchecked power.” In the Oval Office, Trump and Salvadoran President Nayib Bukele each claimed they were unable to return the man mistakenly deported and housed in a facility intended for terrorists.”
“the administration’s maneuvering appears to represent a concerted effort to evade longstanding American law by intentionally sending people to a legal black hole with no process, no rights and no recourse.”
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“”the U.S. is labeling people ‘enemies’ with little or no process, and then shipping them offshore””
“Bukele is actively helping Trump sidestep court orders in the United States.
During a White House visit Monday in which the two leaders bantered like old friends, Bukele insisted on one thing: He will not release Kilmar Abrego Garcia, a native Salvadoran who was living in Maryland until the U.S. illegally deported him last month. The upshot of that declaration: It gives Trump cover to maintain that he is powerless to implement a judge’s directive that the U.S. “facilitate” Abrego Garcia’s immediate return from a brutal El Salvador prison. The Supreme Court upheld that directive last week.
Trump’s “nothing I can do here” stance is unusual for a president who prides himself on strong-arming other world leaders to do his bidding. And it escalates a clash with the courts in advance of a crucial Tuesday hearing before U.S. District Judge Paula Xinis, who ordered Abrego Garcia’s return and is growing frustrated with the administration’s recalcitrance.
Hours after Bukele’s White House visit, the Trump administration quoted some of his comments in a daily report Xinis has demanded. Also in that document, the acting general counsel at the Department of Homeland Security, Joseph Mazzara, declared that “DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.” The filing included no information in response to Xinis’ substantive questions.
The burgeoning partnership between Trump and Bukele is not limited to Abrego Garcia. Trump sent hundreds of other deportees to El Salvador last month, many without due process. And on Monday, he intensified his threats of lawless deportations even further: He openly mused about sending U.S. citizens to the Salvadoran prison.”
“My trepidation boils down to two things. First, for all the talk about cutting government waste and fraud, the DOGE-Trump team seems mostly animated by rooting out leftist culture politics and its practitioners in Washington. It feels that it is less about smaller government than it is about political transformation. While the two intersect, this strategy could fall short.
That’s in part—and this is my second point—because for those of us who care about permanently downsizing government and keeping it bound by constitutional rules to prevent the exercise of arbitrary power, DOGE is mixed. While there is a small probability the approach will succeed in reining in spending or the administrative state, it will be at the heavy cost of reinforcing the power of the executive branch and opening the door to the same abuse when the left is in power.
The probability may be higher, however, that they will fail to make a significant difference at all. If that is the case, we will be left with both a presidency on steroids and no meaningful reduction in government.”
“The Supreme Court..unanimously agreed that alleged members of the Venezuelan gang Tren de Aragua have a due process right to challenge President Donald Trump’s use of the Alien Enemies Act (AEA) to summarily deport them. At the same time, the majority lifted a temporary restraining order (TRO) that blocked those deportations, saying Venezuelans detained under the AEA must file habeas corpus petitions in Texas, where they are being held, rather than seeking relief in the District of Columbia under the Administrative Procedure Act.”
“”Refusing to follow a court order crosses a very clear, very dangerous line…If Trump refuses to follow court orders, especially from the Supreme Court, we will have tipped from chaos into dire crisis.””
“The first case, Oklahoma Statewide Charter School Board v. Drummond, poses the question of whether the 46 states with charter schools must offer public funds to schools that would teach religious doctrine as truth. The second case, Mahmoud v. Taylor, involves the claim that religious parents should have a right to opt their children out of controversial public school curricula.
Taken together, Drummond and Mahmoud threaten the twin cornerstones of the American education system that Brown affirmed six decades ago: Since Brown, America’s public schools have operated under a norm of inclusive enrollment, and they’ve offered all children a shared curriculum that reflects the values that communities believe are essential for civic participation and economic success.
If the court tears down these foundational norms, the schools that remain in their wake will be a shell of the democracy-promoting institution the court itself has long lionized — and that healthy majorities of parents continue to support in their local neighborhoods. And although there’s a way to avoid the worst outcome in both cases, the path ahead is uncertain: It will require the court to follow history in an evenhanded manner (in Drummond) and progressives to accept a middle ground (in Mahmoud).
The legal challenges presented in Drummond and Mahmoud did not arise out of thin air. They are part of a long-term conservative movement strategy aimed at eroding public education.”
“The Trump administration has, for the fourth time in history, invoked the war-time Alien Enemies Act of 1798, even though our nation is not at war—and its last use remains one of the most shameful episodes in American history.
That involved President Franklin D. Roosevelt’s Executive Order 9066 in 1942. It was the basis for the internment of around 112,000 people of Japanese descent, 70,000 of whom were American citizens.”
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“For years, we’ve endured constitutional conservatives’ bloviating about the importance of protecting the sacred principles enshrined in our Constitution. Those include the separation of powers—legislative, executive and judicial checks on one another—and due process. Many of these hypocrites are defending the administration’s policies and bashing a judge for halting the hasty airlift of accused criminal aliens to a prison run by a banana-republic strongman—a directive the president promptly ignored.
Perhaps most of these deportees are criminals and a threat (unlike peaceful Japanese residents who posed no threat whatsoever). They still deserve due process—their day in court, so to speak—to prove they have indeed violated the law. Constitutional conservatives of all people should understand that the government gets things wrong and individuals deserve protection from arbitrary actions by its agents.
We’ve already seen examples of immigrants who were deported based on the government allegedly mistaking a soccer tattoo for gang insignia. Let’s say you were walking around and, based on your attire or ethnic background, the police suspected you were a gang-banger and took you to jail. Wouldn’t your first call be to your lawyer? Don’t you deserve due process to prove you were a passerby before being shipped to Pelican Bay? (And non-citizens generally are considered persons under the Constitution—and also deserve due process.)
The administration isn’t just ignoring these constitutional due-process protections but seems to be actively mocking them. “What were all these young women that were killed and raped by members of (Tren de Aragua)—what was their due process?”” asked Tom Homan, director of Immigration and Customs Enforcement.
Murder and rape always are horrific, but everyone still gets a trial to, you know, prove they actually committed the crime.”
“President Donald Trump claims that the Alien Enemies Act of 1798 grants him the power to deport certain Venezuelan-born aliens without due process based on the mere allegation of membership in a criminal street gang.
But the text of the Alien Enemies Act does not allow the president to do anything of the sort. “Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the act states, the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
The alleged crimes of the alleged members of the street gang Tren de Aragua do not meet this legal standard. There is no “declared war” between the United States and Venezuela, and there is no “invasion or predatory incursion” of the U.S. by “any foreign nation or government.” The gang is not a foreign state, and the gang’s alleged crimes, as heinous as they may be, do not qualify as acts of war by a foreign state. Trump’s frequent talk about a rhetorical “invasion” of the U.S. by undocumented immigrants utterly fails to satisfy the law’s requirements.
The fatal defects of Trump’s position are further illuminated when you compare Trump’s stance with James Madison’s 1800 “Report on the Alien and Sedition Acts.” (The Alien Enemies Act was one of the three laws that comprised the Alien and Sedition Acts.)
As Madison explained, there are two categories of “offences for which aliens within the jurisdiction” of the United States “are punishable.” The first category involves “offences committed by the nation of which they make a part, and in whose offences they are involved.” In this case, “the offending nation can no otherwise be punished than by war.” In other words, the offending nation in this case has committed an act of war against the United States. The aliens who fall within this category are “alien enemies.”
The second category involves offenses committed by aliens “themselves alone, without any charge against the nation to which they belong.” In this case, “the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations.” The aliens who fall within this second category are “alien friends.”
Notice that “alien friends” may certainly be punished by the normal U.S. legal system for whatever crimes they commit while on U.S. soil. They may be deprived of their life, their liberty, and their property. But—and this is a big but—they may only be deprived of life, liberty, or property after they have received due process of law, which is what the Constitution guarantees to all persons, not just to all citizens.”
“The American Bar Association and dozens of other bar groups this week slammed President Donald Trump’s continued crackdown on the legal system as an attack on the rule of law.
“Words and actions matter,” the groups wrote in an open letter on Wednesday, which did not mention the president by name. “And the intimidating words and actions we have heard and seen must end. They are designed to cow our country’s judges, our country’s courts and our legal profession.””
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“Trump has come down hard on Democratic-leaning law firms, signing executive orders and memos suspending security clearances and barring the federal government from hiring employees from firms like Perkins Coie and Covington and Burling. One firm initially in Trump’s crosshairs — Paul, Weiss — saw its sanctions lifted after agreeing to perform pro bono legal work for conservative clients and ending diversity policies.
The retribution tour has now made its way to Congress, with GOP Senate offices told to take note of the blacklisted firms in an email sent last Friday.”
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““If lawyers do not speak, who will speak for our judges? Who will protect our bedrock of justice? If we do not speak now, when will we speak? Now is the time. That is why we stand together with the ABA in support of the rule of law,” the groups wrote.”