The only word the Supreme Court left out of its order last week to return a wrongfully deported Salvadoran migrant from the prison where he is being held in El Salvador was “please.” To briefly recap, Kilmar Abrego Garcia, the Salvadoran migrant, is married to a U.S. citizen and has one child. He has been living in this country for more than ten years and since 2019 has had a “green card” work permit. He was granted temporary protected status based on his claim that if he were returned to his home country, he would be in danger of persecution from Salvadoran gangs. He has never been arrested.
Agents for the Immigration and Customs Enforcement (ICE) picked him up in Maryland on March 12, shipped him to an immigration holding facility in Texas, from which he was later deported on a flight along with some 200 alleged Venezuelan gang members. His wife recognized him in a photo of the deportees taken in the Salvadoran prison, the Center for Terrorism Confinement (CECOT). She got a lawyer and filed a lawsuit in Maryland seeking to have him returned from his confinement in El Salvador.
The judge in the case, Paula Xinis, held several hearings, during which the government admitted that Garcia, in the words of the Supreme Court order, “acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an ‘administrative error.’” Judge Xinis eventually issued an order directing the U.S. government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” Since that date, the Trump Department of Justice has stalled repeatedly.
If Trump’s defiance of two court orders amounts to a constitutional crisis, it is one of the chief justice’s making.
Last Thursday, the Supreme Court upheld Judge Xinis’s order and issued an order of its own, echoing her language that the government should “facilitate” Garcia’s return. The Trump DOJ has reported that Garcia is “alive and secure” at the prison in El Salvador, yet cannot be returned because “He is detained pursuant to the sovereign, domestic authority of El Salvador.” In other words, once Trump’s immigration and justice authorities deposited Garcia on the soil of El Salvador, they felt justified in washing their hands of him, despite their admission that his deportation was “illegal.”
Trump appeared today in the Oval Office with the president of El Salvador, Nayib Bukele, who, when questioned by reporters, refused to return Garcia, saying flatly, “Of course I’m not going to do it.” Although he could put a diplomatic end to the entire matter by asking Bukele to return the illegally deported U.S. resident, Trump sat there and allowed the president of a tiny Central American country to run the Oval Office appearance as if he were in charge.
While the Garcia affair is being called a “constitutional crisis” and a “clash” between the executive and judicial branches of government, what’s happening here is outright defiance of the law by the President of the United States.
In yet another act of defiance, the White House on Monday barred a reporter and photographer from the Associated Press from the Oval Office despite an order last week by District Judge Trevor N. McFadden, a Trump appointee, that the administration could not discriminate against the AP in its issuance of press credentials or access because Trump disagrees with the editorial point of view of the news organization.
If Trump’s defiance of two court orders amounts to a constitutional crisis, it is one of the chief justice’s making. The courts are essentially telling Donald Trump that they are ordering him, “do not break this law,” and Trump is telling the courts, “I can break any law I want because John Roberts told me I can.”
The reference is to the Supreme Court decision last year granting Donald Trump, and any future president, immunity from prosecution for any official acts taken while in office. Refusing to return an illegally deported person to U.S. jurisdiction is, according to Trump, an official presidential act, so given your immunity decision, Justice Roberts, what are you going to do about it?
Not much, according to the court’s order of last week, which Roberts softened by instructing the lower court judge that the “effectuation” of her court order should be carried out “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”
It seems not to have dawned on Roberts that if the United States is conducting its foreign affairs in an illegal manner by, for example, committing war crimes in furtherance of U.S. policy aims, it is the business of the courts, and especially the Supreme Court, to uphold the laws by finding such conduct illegal and ordering the Department of State and/or the Department of Defense to cease and desist and correct its errors under court instruction.
The Constitution does not have a clause which states specifically, “either we have laws and follow them, or we don’t.” The closest the Constitution comes is in Article II, Section 3, where it is mandated that “the president shall take Care that the Laws be faithfully executed.” This clause is violated each day when Donald Trump awakens and opens his eyes. He committed the offense of insider trading last week, when two hours before he relaxed his onerous tariffs, he posted on Truth Social that it was “a good time to buy!” signaling to his friends that stocks would be recovering from the dive they took when he imposed the tariffs in the first place.
Trump is running a lawless presidency right out in the open and announcing that fact practically every day because he has been given permission by the Supreme Court to ignore not only norms and traditions observed by previous presidents, but the law itself.
Today, a law-abiding migrant is the victim of Trump’s blatantly illegal behavior. The most frightening thing about the first three months of Trump’s second term is not knowing where we stand. Unless and until John Roberts decides to step up and draw some lines, there are no limits on Donald Trump. Even if that happens, it remains to be seen whether Trump will deign to adhere to judicially imposed limits. He is already in violation of two district court orders and one order by the Supreme Court itself.
We are learning a grim lesson: Democracies don’t necessarily die in darkness but in the sunlight of outright defiance of the law by a president charged with its enforcement.
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