The Supreme Court Got It Badly Wrong

Today, the Trump administration made it clear: they will have to be forced to comply with the law. They will not do it voluntarily. It’s just that simple, and that complicated. Worst of all, it’s completely unsurprising that we’ve come to this juncture. This was in the cards all along.

Let’s be clear. The United States Constitution does not permit the deportation of American citizens for committing a crime. That’s essentially what Trump talked about today, telling El Salvador’s president Nayib Bukele, whom he welcomed into the Oval Office, that Bukele would need to build more of his terror prisons to house “homegrowns”—American citizens. That is not legal. But what’s legal doesn’t seem to matter to the Trump administration. The question is whether anything or anyone can still force him to follow the law.

Trump, both during his first term in office and again now, has been a fan of private, for-profit prisons. They are problematic for all kinds of reasons, including the conditions in them and the perverse incentive they create to incarcerate more people for longer instead of doing justice. But what Trump is contemplating here is far more than putting Americans in for-profit prisons—he has reportedly paid Bukele $6 million to hold deportees for this first year, even ones in a foreign country.

And Bukele is not someone any other president would have put on the list for an early visit to the White House. You may recall we discussed him in February, when I wrote to you that “Tuesday night [Elon] Musk tweeted about impeaching judges at least six times. ‘The only way to restore rule of the people in America is to impeach judges. No one is above the law, including judges. That is what it took to fix El Salvador. Same applies to America,’ he wrote at one point. The president of El Salvador, Nayib Bukele retweeted Musk, adding, ‘If you don’t impeach the corrupt judges, you CANNOT fix the country.’”

We don’t need Bukele’s kind of fix for our country. It’s not just that he runs a torture prison; it’s that he doesn’t believe in the rule of law at all. He shouldn’t be housing American deportees or prisoners, let alone whispering in the ear of an American president.

What makes for a concentration camp as opposed to a prison? Max Burns turned to this entry in the Holocaust Encyclopedia for a definition: “What distinguishes a concentration camp from a prison (in the modern sense) is that it functions outside of a judicial system. The prisoners are not indicted or convicted of any crime by judicial process.” That’s what’s happening in El Salvador. Kilmar Abrego Garcia has not been indicted or convicted, but he’s in prison. The same for many of the other people deported to El Salvador.

And what of Trump’s “homegrowns”? The Holocaust Encyclopedia notes that “The major purpose of the earliest concentration camps during the 1930s was to incarcerate and intimidate the leaders of political, social, and cultural movements that the Nazis perceived to be a threat to the survival of the regime.”

It has been a stark, unnerving, but entirely predictable day (week, month). It’s clear that the Trump administration isn’t complying with court orders in good faith. Take, for instance, the daily reports on Abrego Garcia’s situation, ordered by the district judge. They are coming in late and incomplete; the government’s disrespect for the court is really unprecedented. In 25 years at DOJ, I saw nothing like this. But that takes a back seat to the Trump administration’s failure to even go through the motions of complying with the order that they “facilitate” the return of Abrego Garcia to the United States.

Today, in the session with Bukele, Trump made it clear that he wasn’t asking, and Bukele, that he wasn’t delivering. With Trump aide Stephen Miller claiming (he was completely wrong) that the Supreme Court ruled 9-0 in the administration’s favor, today was 1984 in full Orwellian dimension. Miller also claimed Abrego Garcia “was not mistakenly sent to El Salvador…. This was the right person sent to the right place.” But Trump’s Justice Department, including his Solicitor General when the case was before the Supreme Court, has conceded the government made a mistake.

Last Thursday, when the Supreme Court meekly asked the government to return Abrego Garcia from custody in El Salvador, I wrote:

“If the government were acting in good faith here, this order would probably be fine. But the government has made clear that it is not, showing absolutely no concern about the fact that the ‘removal to El Salvador was therefore illegal.’ Unless the administration suddenly changes its tune, we can expect to see them claim they tried to facilitate but weren’t able to effectuate Abrego Garcia’s release. ‘Oopsie … Too late,’ as El Salvador’s President Nayib Bukele tweeted above a screen grab of a New York Post headline reading, ‘Fed judge orders deportation flights carrying alleged Venezuelan gangbangers to return to US, blocks Trump from invoking Alien Enemies Act.’ Secretary of State Marco Rubio re-tweeted that post, which refers to the Alien Enemies case, not Abrego Garcia’s, from his personal X account.

“In other words, the six conservative Justices on the Supreme Court sent Donald Trump’s administration a message that they’re willing to let him get away with it. It’s easy to imagine the Trump administration telling the court they asked the Bukele administration to release Abrego Garcia, but it didn’t happen, and then declining to say more, perhaps invoking the official secrets act. At a minimum, the Supreme Court has given them room to prolong Abrego Garcia’s detention in El Salvador through more proceedings in the district court and another round of appeals.

“It’s wrong. And it also means that none of us are safe. If the government can spirit you out of the country before your lawyers can get to court, it’s just too bad. Justice Sotomayor, joined by Justices Kagan and Jackson, made precisely that point in a statement that accompanied the Court’s order, writing that, “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.”

Today, those words rang true. And it’s important for us to keep track of the whole litany of events here, because the administration is counting on us to have bad memories and lose track of events. But it’s clear they are in open defiance of the courts. The question remains, what are the courts, and most important, the Supreme Court, going to do about the challenge to their ability to rein in constitutional excesses by the president?

It was Alabama alum and CNN reporter Kaitlin Collins who asked Trump the key question in the Oval Office today. She called him on his retreat from last week’s promise to obey orders by the Supreme Court. Trump brushed her aside, asking why she couldn’t focus on how “wonderful” it is that he is “keeping criminals out of our country.”

If there were a map that showed democracy slipping into dictatorship, we would be at the spot marked “You are here.” We shouldn’t sugarcoat the danger. Due process matters to immigrants and Americans alike. When the presidency refuses to honor it, we are all in danger. Donald Trump could snap his fingers and secure Abrego Garcia’s return to the United States. We all know that’s true, no matter what pretense this administration assumes.

If Donald Trump can refuse to return a person he has illegally deported to a foreign prison where he is paying for him to be held in indefinite custody, then he can do it to American citizens, too. The 8th Amendment to the United States Constitution prohibits “cruel and unusual punishment.” There is no doubt Bukele’s prison violates that prohibition. Donald Trump doesn’t seem to be concerned with that. As long as he can get someone—American or not—out of the country before their due process rights kick in, he can send them to El Salvador, or anywhere else, and instead of just deporting them, he can, apparently, put them into a horrific prison for the rest of their lives. District Judges and Courts of Appeals will continue to say that this is wrong, that it is illegal, as they have so far. The question we’re all waiting on the answer to is, what is the Supreme Court going to do about it?

We’re in this together,

Joyce