An immigration case involving a single man reveals the heart of the issues raised by the Trump presidency.
Trump and his core team believe that he has virtually
absolute and unchecked power. His
political revival is asserted as evidence that the American people want him to
decisively change their government.
The case
involves the removal from Maryland of Kilmar Armando Abrego Garcia, who claims
refugee status and who remained in the U.S. as the result of a court
order. The Department of Justice says he
was expelled because of an “administrative error.”
The government refuses to attempt to return him to the U.S.,
despite a unanimous Supreme Court order, backing a decision of a federal district
court. The “administrative error” overlooked his right to due process, including
a formal hearing.
DOJ officials argue that the courts cannot order the executive
branch to “facilitate” his return. They
maintain that the Constitution gives the president complete and exclusive
authority over foreign relations, making it impossible for the court to require
him to take an action relating to the man, who is now in prison in El Salvador
(the Savior).
No basis exists for asserting that presidential authority
over foreign
affairs is complete and exclusive. For
example, the Constitution gives Congress authority in approving treaties, sanctioning
enemies, declaring war and controlling immigration. It may delegate functions to the president,
but it retains ultimate control.
Most importantly, it has the power of the purse. It may pass laws affecting the exercise of
presidential powers by denying the use of federal funds for a specific purpose.
The courts, too, have powers relating to the exercise of foreign
relations. They are responsible for ensuring that all branches of government act
within the requirements of the Constitution and laws, including due process.
Despite DOJ claims, the Supreme Court has issued decisions, respected
by the executive branch, related to government actions taken outside of American
territory. In the case of a person illegally
sent by the executive branch to El Salvador, courts can issue orders to the president
who sits in Washington.
The courts try to carefully consider their decisions and may
issue temporary
orders to halt executive branch action while they deliberate. The executive may disagree, but it must comply,
at least temporarily.
Judges disapprove of government action being taken despite
such a restraining order, as the Trump administration has done in the case
involving the hasty transfer of hundreds of Venezuelans to El Salvador without
due process.
In that case, the judge
has found that the administration may be in contempt of court. If he issues such a ruling, the DOJ would
have to prosecute violators. The judge warns
that he could appoint outside lawyers, if the DOJ refuses to act.
When swift presidential action forces the court into making
rapid rulings without full review, a district court judge, sitting alone, may be
made to appear as a partisan adversary.
The president may claim to be tussling with an “unelected” opponent
rather than disobeying a court.
The assertion of broad presidential foreign relations power is
part of an attempt to exercise nearly total government power, pushing aside
Congress and the courts. The Republican
Congress has voluntarily acquiesced, but the federal courts continue trying to
ensure executive branch actions are legal.
Many federal
court cases across the country involve complaints that many of Trump’s executive
orders and DOGE agency-slashing moves violate the law. By acting rapidly, the president has forced
courts to act quickly either to suspend his actions or consider them after the
fact.
In the federal government, each of the three branches can control,
limit or delay action by each of the others.
Constitutional checks and balances are meant to ensure that nobody can
exercise unilateral power, akin to authoritarian rule.
No election, no matter how strong its political message, allows
the winner to annul the constitutional system.
Elections and policies come and go, but the system must prevail. If not, we can reach a point, as we have,
when the president threatens to expel
citizens he considers serious criminals.
That’s wrong for a citizen and is also wrong for a
non-citizen, like Abrego Garcia. Due
process does not apply only to a citizen;
it applies to a “person”
in the U.S., however they got here.
In an obviously staged event, the president of El Salvador met
with President Trump at the White House.
He refused to return the man, saying he would not send a terrorist to
the U.S. There is no evidence that the
man is a terrorist.
But Trump did not correct him or say the U.S. would accept
him in line with the Supreme Court order.
Instead, he smirked in approval. Later,
Trump’s press secretary defiantly asserted Abrego Garcia would never return to
the U.S.
Is this where the Constitution stops?
