The Constitutional Crisis is Here
"... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
You’re here because you care about history and politics. I’m here to draw on decades of writing about history and politics, particularly by applying history to our current circumstances. These essays are free, but your financial contribution helps support my writing and research including a new book in progress.
Subscribe to Marc’s Substack for $8 a month or make a pledge. Many thanks.
The New York Times Sunday night:
The Trump administration on Sunday evening doubled down on its assertion that a federal judge cannot force it to bring back to the United States a Maryland man who was unlawfully deported to a notorious prison in El Salvador last month.
So this is the case of Kilmar Armando Abrego Garcia, a native of El Salvador who the Trump Justice Department admits was illegally deported last month - to El Salvador - and is now being held in a notorious prison in that central American country.
Federal Judge Paula Xinis in Maryland originally ordered the government to bring Abrego Garcia back to the United States, presumably so that the U.S. Justice Department could provide evidence that he deserved to be deported rather than merely abducted and then spirited away to a gulag.
That’s the way the system is supposed to work.
The government believes an immigrant, refugee, etc. has done something to warrant deportation so they go to court and make that case. The person in question has a right to “due process” to defend against the government’s charge. None of that happened in the Abrego Garcia case.
When the Trump Administration told Judge Xinis to effectively pound sand the case went to the U.S. Supreme Court. The Court then ruled unanimously last week that the government must “facilitate” Abrego Garcia’s release, but cautioned Judge Xinis to act “with due regard for the deference owed to the executive branch in the conduct of foreign affairs.”
This less than precise Supreme Court language has become a serious problem in the case, but only because of the incredible bad faith and the willful embrace of illegality by the Trump Administration.
After first essentially telling the judge they couldn’t do anything to get Abrego Garcia out of his Salvadoran hell hole, the administration’s lawyers now say the District court has no power to interfere with the president’s authority to make U.S. foreign policy. This seems to be a suggestion that somehow the president of the United States has determined that holding a man illegally in a foreign jail in a country with a brutal authoritarian leader is all in keeping with the responsible conduct of American foreign policy.
The Salvadoran prison holding Abrego Garcia and many others
And, of course, an administration that confirms the timing and scope of air attacks on Middle East targets over an insecure Signal app that just happened to include the editor of The Atlantic conjures up some fresh BS about the judiciary interfering “with ongoing diplomatic discussions” that might result in the release of “classified documents.”
Furthermore, the administration argues - very convincing, right - that when the lawyers for Abrego Garcia’s request for more information concerning their client that request amounts to “micromanaging” U.S. foreign relations.
Good lord.
As Politico reported:
The administration continued Sunday to flout a Friday order from Xinis to deliver “daily updates” to the court describing its efforts to return Abrego Garcia to the United States. Sunday’s update from Evan Katz, the assistant director of removal operations for Immigration and Customs Enforcement, said the administration had “no updates” for the judge. A day earlier, in a similarly threadbare update, the administration turned to Michael Kozak, the State Department’s senior bureau official in the Bureau of Western Hemisphere Affairs, who said Abrego Garcia was still alive in El Salvador’s CECOT prison.
The administration is also bucking demands from Abrego Garcia’s attorneys that officials detail the arrangement to ship hundreds of foreign nationals to a notorious prison in El Salvador. One of the Sunday filings insists those details are classified and could be subject to attorney-client and state secrets privileges.
Judge Xinis has a hearing on Tuesday. Wonder how she spent her weekend?
Like so much with the Trump Administration the basic and essential facts of this tremendously disturbing case tend to get lost in a reeking pile of bad faith, gaslighting and malicious intent. The lawyers piling up the bad faith, we should remind ourselves, are charged with representing the American people, but in this case they are actually micromanaging the dictatorial whims of our commander-in-chief and his many enablers.
To wit on the bad faith front:
The government admits Abrego Garcia was illegally deported.
The administration, it is reported, is paying El Salvador’s government $6 million to lock up around 300 individuals who have been deported in the last month or so. That means the administration has all the contacts, all the leverage, all the authority it needs to do what is simply the right thing and bring Abrego Garcia back.
Abrego García, who has three children and has lived in the U.S. for a decade, has never been arrested or accused of a crime and denies any affiliation with the MS-13 gang.
Yet, the administration - and it’s lawyers (you really wonder how they live with themselves) - concoct an entirely bad faith argument to do nothing.
The administration is clearly challenging the judicial branch to either back down or ratchet up. What comes next? Nobody knows.
I’m no constitutional lawyer, but I would suggest if we really are headed for a “constitutional crisis” let’s have it out over a man wrongly imprisoned in a foreign country by a government that admits it’s error and then gives the middle finger to what almost any fair minded person would say is a reasonable demand that helps ensure the rights of every individual under our Constitution and laws.
I also don’t know - and suspect the administration doesn’t either - if Kilmar Armando Abrego Garcia is a really bad guy. May he is, may not. But that is not really the pressing issue.
What is clear - and this is a hugely important bedrock principle of our Constitution and the rule of law - is that the Fifth and Fourteenth amendments to the United State Constitution guarantee “due process” to “any person.”
Any person means any person. You, me, Abrego Garcia, Donald Trump, Martha Stewart - anyone. No exceptions. Period.
If it acts like a Constitutional crisis it really is one.