Trump’s disregard for court order in Abrego Garcia deportation case is just another sign of our constitutional crisis
We have heard much about Donald Trump’s ongoing disregard for the U.S. Supreme Court order which requires his administration to “facilitate” the return of Kilmar Abrego Garcia, the El Salvador national who was “mistakenly” deported to his home country, by the government’s admission, and who currently languishes in a prison there.
Significantly, the Trump administration is paying the El Salvador government to house numerous deportees there in a prison under conditions which probably violate the 8th Amendment prohibition against cruel and unusual punishment. Since this court order was issued, Trump hosted El Salvador President Nayib Bukele, who claims to be the “coolest dictator” in the world, at the White House.
While both presidents indicated that there is nothing they can do to comply with the court order, one suspects that Bukele would have returned Abrego Garcia (seen above, left, with Maryland U.S. Sen. Chris Van Hollen in a public domain photo posted on wikimedia commons) right away if Trump had asked him to do so.
In the meantime, the case has moved to the Fourth Circuit Court of Appeals, which sits in between the federal district court (which had issued the initial ruling in this case) and the U.S. Supreme Court. The Fourth Circuit denied the government’s request for an emergency stay of the district court’s order, a request which it termed “both extraordinary and premature.”
Indeed, the Fourth Circuit’s order issued on April 17 in the case of Abrego Garcia v. Noem (yes, our former South Dakota governor is the prime defendant in this case) makes interesting reading. This column will provide some of the highlights.
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
One can imagine Kristi Noem, who is now secretary of Homeland Security, imagining that she should have this power. On one of her first days in office, she visited New York and boasted about her new ability to round up “dirtbags” and have them removed from this country.
Since her fancy purse was recently lifted from behind her chair in a Washington, D.C. restaurant, and an undocumented immigrant has been named as the suspect who allegedly stole her vast amount of cash, her passport and driver’s license, her apartment keys and her elaborate array of makeup, one can imagine that she is more eager than ever for the unilateral power to deport the ubiquitous dirtbags.
The Fourth Circuit’s order dealt with the presumption of innocence that applies to all suspects. Says the order: “The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.”
Some apologists for the Trump administration have attempted to minimize the importance of the court order by pointing out that Trump and Noem were merely required to “facilitate” Abrego Garcia’s return, not to actually make it happen. We have been told that, even if Abrego Garcia is returned to American soil, he will be immediately deported again, without any court hearing where he could defend himself and assert his right to remain in this country.
The Fourth Circuit stated that the unanimous Supreme Court decision “does not … allow the government to do essentially nothing … ‘Facilitate’ is an active verb.”
Clearly, if Trump merely told Bukele to return Abrego Garcia if he felt like it, he did not comply with the directive from our highest court. The Fourth Circuit is clearly aware of the disastrous precedent which would be created if Trump and Noem simply ignore the Supreme Court’s order.
“What assurance will there be tomorrow that (the government) will not deport American citizens and then disclaim responsibility to bring them home?”
Currently, we are faced with a constitutional crisis the likes of which this country may have never faced in its 250-year history. Our democracy is based on a system of checks and balances, where the powers of the executive branch are kept in check by the powers of the judiciary, and also Congress.
The Fourth Circuit addressed the question of checks and balances: “The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.”
Since the federal government has three branches, it’s worth noting that South Dakota’s senior U.S. senator, John Thune, currently has the title of majority leader.
Thune could help defuse this constitutional crisis by informing Donald Trump and our homegrown South Dakotan, Kristi Noem, that they are obligated to respect the rule of law by using their considerable authority to affect the return of Kilmar Abrego Garcia to his home in Maryland.
There is more at stake here than one man’s freedom.
Jay Davis is a retired Rapid City lawyer and regular contributor to The South Dakota Standard.
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