The Constitutional Standoff Has Arrived

Written By Leeja Miller

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Transcript:

An innocent man’s deportation case is being used as a litmus test to see how far the Trump administration is willing to push the bounds of the law and flout the rule of the judiciary. So far, it’s not lookin’ great for freedom and democracy. Kilmar Abrego Garcia came to the US nearly 15 years ago, entered without authorization but then worked through the system to obtain a immigration court order giving him protected status that allowed him to work and remain here legally because of his fear of gang violence in his home country of El Salvador. An immigration court ruling from 2019 explicitly barred him from ever being deported back to El Salvador. Then, one month ago, Abrego Garcia was detained without warning, given no opportunity to see a judge or plead his case, and deported to El Salvador. Not only deported, but imprisoned in Cecot, the El Salvadorian prison known for human rights abuses, a prison from which no inmate has ever been released. In the ensuing month, Abrego Garcia’s case has received global attention, the Supreme Court of the United States has weighed in, and every judge who has heard this case has unanimously determined that Abrego Garcia should never have been deported. The Trump Administration itself admitted he was deported due to administrative error. And yet it now claims that his return is impossible. As government attorneys drag their feet, it feels like the entire country is watching this case with bated breath to see just how far the Trump administration is willing to go to flout the power of the judiciary, and how far the judiciary is willing to go to try to stop them. Just hours ago, a judge in another case involving planes of Venezuelan migrants ruled that there was probable cause to hold the Trump administration in criminal contempt. The outcome will either be a judicial line drawn in the sand protecting our country from complete authoritarian takeover, or an indication that judges from the supreme court on down no longer have the power to stop Trump from doing exactly what he wants. What does this case mean, how is the Trump administration spinning this in their favor, and how could the consequences of the outcome ripple out to impede the rights of not just immigrants but everyone in America? Let’s get into it.

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Like I said, the eyes of the nation and the world are on the Abrego Garcia case, naturally leading to numerous news reports about this case. This article from Democracy Now caught my eye with the headline “Judge Overseeing Kilmar Abrego Garcia’s Case Considers Contempt Charges for US Officials” – obviously, um, concerning, so it really grabbed my attention.

Using the Ground News browser extension, it’s helpful to see that this news source has a left leaning bias. I really love this extension because it provides context, and I can see how other sources are framing the story by clicking full coverage.

On the Ground News website you can see that there are 228 sources covering this topic

Among them, left leaning Rolling Stone uses the headline: “‘Abrego Garcia’s Wife Pleads for End to ‘Political Games’ Before Judge Slams Trump Admin" while the far right Newsmax frames it as: "Judge to Mull Trump's Compliance Over Garcia Deportation” downplaying the seriousness of the allegations. These are very different takes on the same story, and it's a clear example of how consuming news from only one perspective can limit your understanding of a situation.

This is where Ground News comes in - and why I've been using them for over a year. Today’s partner Ground News is an app and website that offers tools to help you critically analyze the news you read, providing context to understand the full picture.

By using the Ground News Vantage Subscription, I can also see the blindspot feed where I can see stories disproportionately covered by one side of the political spectrum. For example, no right leaning news sources are covering the headline that Trump’s tariffs “highly likely” to reignite inflation according to Fed chair. Interesting. I feel better equipped to make sense of what’s happening in the world without being influenced by just one perspective.

I’m always really impressed with Ground News and genuinely think they’re a great resource. If you want to stay informed on US Politics and more scan my QR code, or click the link in the description or go to ground dot news slash leeja to get 40% off the same Vantage plan I use which comes to about $5/month. Ground News is subscriber-funded, so they don't rely on ads that could introduce bias! Subscribing supports my channel and an independent team working to keep the media transparent. Thanks Ground News!

On April 4th, the US District Court for the District of Maryland through Judge Paula Xinis ordered the government to quote “facilitate and effectuate the return of [Abrego Garcia] to the United States.” The Trump administration asked the Supreme Court to vacate that order. In a unanimous response published on April 10th, the US Supreme Court said, quote “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

Okay so as with many legal things, the central dispute here really boils down to two words and how we define them: facilitate vs effectuate. The Supreme Court said yes absolutely the government does have an obligation to facilitate the return of Abrego Garcia but a judge ordering the executive branch to EFFECTUATE his return might go beyond judicial authority and step on the toes of executive branch powers, which is stupid but we’ll get to that.

We’re not going off any statutory definition of facilitate and effectuate here, we’re just going off their plain dictionary meaning. Merriam Webster dictionary defines facilitate as: to make something easier or to help bring something about. It defines effectuate as: to cause or bring about something or to put something into effect or operation. So it’s not a black and white distinction but they’re basically saying yes the government should facilitate his return to the US, to help bring about that outcome, but we’re not clear that they can be ordered to effectuate his return meaning to actually bring about his return. And so it was sent back down to Judge Xinis to determine the exact scope of “effectuate” and whether it was within her authority to order that.

In response, Judge Xinis clarified the meaning of effectuate by removing it altogether, saying that instead, quote “the Court hereby amends the Order to DIRECT that Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” So they don’t have to get to whether “effectuate” is within her power, she’s just directing them to take ALL steps available to them to facilitate Abrego Garcia’s return, to help bring it about. She then ordered that the government, by the morning of Friday, April 11th, so this past Friday, provide a declaration with information including Abrego Garcia’s current whereabouts and what steps the government has taken or will take to facilitate his return. But then Friday morning rolls around and the government is like mmmm so sorry we need more time. No no, not two hours, no no not the weekend, sorry we’re gonna need until Tuesday to reaaally review this order and be able to get back to you. Which is stupid the Supreme Court order was literally two pages long and Judge Xinis’ request of the government was incredibly straightforward. The Trump administration argued that it was simply IMPRACTICABLE to reveal potential steps before they are reviewed and vetted, saying, quote “foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.” Which is actually absurd but we’ll get into that.

Judge Xinis ordered the government to provide her with daily updates as to Abrego Garcia’s status and what they have done to facilitate his return. And, as you might guess, the updates they did provide were petulant and blatantly devoid of information. On Saturday they confirmed that he is alive and in Cecot, though it continued to defy her order to tell her what they’re doing to facilitate his return. The government’s statement on Sunday said it had nothing to add.

Abrego Garcia’s lawyers asked the judge to order the government to explain why it shouldn’t be held in contempt for violating court orders. And on Tuesday, yesterday, the judge told the government to wipe their calendars for the next two weeks because she’s allowing Abrego Garcia’s lawyers to move forward with collecting evidence as to whether or not the government has done anything to get Abrego Garcia back, saying the government defied a clear Supreme Court order. This will include taking depositions, so sworn testimony in the form of sit down interviews of usually up to 7 or more hours in length, of key Trump administration officials, plus information and document requests that, at least in a regular court setting, the government has to respond to. This can be a lengthy process that will almost certainly be made lengthier because as part of the process the government can object to literally everything Abrego Garcia’s lawyers attempt to uncover. Every question they ask, every document they request, in writing and in those long depositions, can be objected to. This leads to lengthy back and forth between the parties as to whether or not the government has the grounds to object, which will have to eventually be decided by the judge. For every question. For every document request. And the government will likely claim attorney privilege, national security concerns, executive privilege, etc etc etc for everything. So two weeks is frankly a conservative estimate as to how long this step will take. Meanwhile, Kilmar Abrego Garcia has been and continues to be in El Salvador, his freedom taken from him, forcibly removed from his wife and family and the country he’s lived in for 14 years, having committed no crime that the government can prove, sitting in one of the most violent, inhumane prisons in the world, where human rights abuses are known to occur, and where members of the very gang he was trying to escape are also housed. And every day the government drags its feet on this is another day when this man’s freedom is being lawlessly, cruelly taken from him without ever having been given the chance to set foot inside a court to defend himself before he was detained. The injustice is staggering, and yet the Trump administration is celebrating this as a victory.

Abrego Garcia has never been charged with a crime. Let me say that again: he has NEVER been charged with ANY crime. Not immigration related, not gang related, nothing, the government has never charged this man with any crime. The Trump administration, after admitting that his deportation was an error, has nevertheless said well he’s a member of MS 13 so, it’s fine anyway. He’d be a danger to the public if he came back. The problem with that argument is that, as I say over and over and over, he was still owed due process rights whether or not he was a gang member, which by the way the government has provided zero proof of his gang affiliation other than an unknown confidential informant alleging he was a member of the MS 13 branch in Long Island, New York, a place he has never lived or even visited. We give even the most heinous of criminals due process rights. Ted Bundy got to waste all our tax payer dollars and time with his day in court. And don’t tell me “well he was a citizen so it’s different” because that means you’re defending Ted Bundy and is that really the position you want to be taking??? Yes even non-citizens are guaranteed due process rights, the constitution says “people” not “citizens” in granting due process and yes there are parts of the constitution that say “citizens” on purpose so it wasn’t an oversight in the writing of the 5th or 14th amendments which is where your due process rights originate in case you’re curious. And contrary to what the Trump administration would have us all believe, immigrants, whether here legally or not, are, in fact, people. Human persons. But the Trump administration, in dehumanizing immigrants, is also betting on the fact that most of us haven’t read the constitution when they argue that in fact immigrants aren’t allowed due process rights, it’s only for citizens. That is patently false and contrary to not only the plain language of the constitution but also to the numerous court cases that have interpreted due process in this country. JUST SO WE’RE CLEAR.

But as any good propaganda machine is wont to do, the Trump administration has spun the Supreme Court ruling as a victory, saying, despite fact and basic understanding of the English language, that the Supreme Court found unanimously in their favor in that facilitate vs effectuate decision. They’ve spun it as the Court finding that Judge Xinis clearly overstepped her judicial authority in ordering the return of Abrego Garcia because it is not within her power to make the government effectuate his return. This, despite the clear and unambiguous language of the Supreme Court saying they were explicitly denying the Trump administration’s request and should make every effort to facilitate his return. They are then taking their invented “victory”, that the supreme court said a judge can’t order them to return Abrego Garcia, to then turn around and say there is absolutely no way to facilitate his return because that is clearly well established as within the president’s diplomacy powers. As always, their work is ultimately to get all of the power in the hands of the president, so they’ll take every opportunity they can to say that another branch is stepping on presidential toes. Which goes against our 250 year history of relying on checks and balances to ensure that the three branches of government are co-equal, but as we know this administration likes to ignore facts and make things up as they go.

It also goes against all judicial precedent, which indicates that courts do have the right to order the return of a person from another sovereign country to US soil or to order the release of prisoners being held overseas. The court is completely within its jurisdiction to order the US government to take action, even if it can’t order El Salvador to do anything. The US has history and experience with facilitating the return of mistakenly deported individuals. Justice Sotomayor literally cites to judicial precedent in her concurring opinion to the effectuate/facilitate ruling, saying “The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong.”

All judicial precedent not withstanding, we also literally have an extradition treaty with El Salvador. If Abrego Garcia is the criminal they claim he is, and if they gave a shit about following Supreme Court and other judicial orders telling them hey you fucked up and need to bring Abrego Garcia back so he has a day in court, they could move to extradite him to stand trial in the United States. The problem with that is that they would then have to criminally indict him and that generally requires any evidence whatsoever of criminal activity. Which they could of course invent but ugh that sounds so harrrrrrdddd can we just leave him there????

And then there’s also the fact that we literally have a contract with El Salvador, we’re paying them millions of dollars to hold these inmates. As a party to that contract and agreement, we have negotiating power to determine who stays and who goes.

And even without ALL of that–the laws, the judges, the treaties, that all contradict what the government is saying, that there’s absolutely no feasible way they could get Abrego Garcia back, isn’t it kind of embarrassing for a man who claims to be the ubermensch, the alpha male, the strongest biggest toughest guy you’ve ever seen, a man who’s so good at deals you’ve never seen anyone so good at deals, he literally wrote the book on making deals, isn’t it kind of embarrassing that despite all his big strongman prowess he can’t get one tiny poor little shit hole country to do what he wants? I say that with sarcasm, obviously El Salvador is not a shit hole country and obviously if Trump wanted to he could get Abrego Garcia back but of course he only uses his strongman tactics to get what HE wants, and lord knows the LAST thing he’s gonna do is be told what to do by the likes of some lowly district court judge, and a WOMAN at that. Yuck!

And so now we wait to see how much the government complies with THIS latest court order and the ongoing discovery back and forth with Abrego Garcia’s lawyers while he rots in a gulag. And in the meantime the Trump administration and Trump himself are amping up rhetoric indicating that they have every intention of continuing to expand deportation efforts, no matter who “accidentally” gets swept up in the chaos. On Monday, El Salvador President Bukele visited the White House. The dictator received a friendly welcome and appeared in lock step with Trump’s denial of Abrego Garcia’s rights or innocence, calling him a terrorist and saying it was preposterous to suggest that he should smuggle a terrorist into the United States from El Salvador. During the visit, Trump could be heard urging Bukele to build more prisons because he wants to send the “home growns” down there as well. Trump and others in his administration have doubled down on this idea, that we could start sending US citizens down to El Salvador, presumably convicted criminals who can be housed for much less money in El Salvador than we’re paying to have them stay here. Which types of criminals is unclear, Trump said on Monday that “we have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking.” So I guess those ones? The problem with that proposition is that it is not legal. Trump has said he’s sent attorney general Pam Bondi on a mission to “study the law” to determine whether it’s legal. When pressed to answer whether or not it is legal, Bondi completely evaded the question at a press conference earlier this week, which would have gotten her an F in law school had she been given a research assignment and then just decided not to answer it truthfully, so sounds like she’s got her work cut out for her, though I’m sure she’ll come up with something creative.

The reality is that there are no laws that give the government the right to deport citizens. Deportation laws are part of the immigration system, citizens are not in the immigration system, the laws don’t apply to them. Naturalized citizens, those that weren’t born citizens but went through the correct path to obtain full citizenship, are also protected, their citizenship is only revoked under the rare circumstance where they obtained it through fraudulent means so it was never legitimate to begin with. But citizens cannot be deported to a salvadorian gulag under any circumstances, under any law, nor under the constitution. It flies in the face of our protected rights as citizens, it flies in the face of the 8th amendment protection against cruel and unusual punishment, among so many other rights that would be violated if any citizen were simply up for deportation at the whim of the government. Pam Bondi may find something to point to to say we can send citizens to foreign prisons but please know whatever she says, according to legal experts, will be an incorrect or flagrantly deceitful interpretation of the law. If we get to a point where citizens are being deported it will be because we have reached a point where the regime is no longer even pretending to be operating within the confines of any law. And we will get there through cases like the Abrego Garcia case and through the continued erosion of the rights of immigrants. Immigrants continue to be deported to Cecot in El Salvador, most without full due process rights. Reports are also coming out that the Trump administration is using the Social Security Administration to attack immigrants, deliberately placing very alive immigrants on the “death master file.” This means that immigrants who have social security numbers, legally obtained through various means, could be added to the list of dead peoples’ social security numbers. This list is in place to ensure that no one is using the number of a dead person to obtain benefits or otherwise defraud the government. Having your social security number put on the dead list while you are very very much alive has devastating consequences because it shuts you out of literally everything. Your bank accounts, your ability to work, your literal existence is wiped clean, anytime you try to do anything you will be flagged as fraudulent. It’s been reported that 6000 people have been added to the death master file despite being known to be alive. According to the Brookings Institute, they are described as mostly Latino immigrants whose legal right to stay in the country has been revoked due to criminal activity or has expired. And they’re considering adding more names to the list. And they’re getting rid of anyone who stands in their way–a senior social security executive was fired after arguing that adding numbers of alive people to the dead list was probably illegal. The goal is to avoid any nuisance arguments about due process or other rights by making life as difficult as possible in the US so immigrants will simply self deport. Unfortunately by economically blacklisting immigrants by adding their social security numbers to the death list, those immigrants who were paying taxes and paying into the social security system, will not have the means to leave and will instead likely work for the underground economy, making them more vulnerable and also removing that tax income from the federal budget. And immigrants pay an ENORMOUS amount of money in taxes to the federal government, according to the Brookings institute they paid in $25 BILLION to social security alone in 2022.

But of course arguing in favor of the contributions that immigrants make to our country is a waste of breath when the end goal is based in white christian nationalist ideology. The motivator isn’t economic, it’s hate. Social security be damned. To that end, the Trump administration has made great efforts to not only take actions that are aimed at scaring immigrant populations, like detaining Mahmoud Khalil for speaking out against the genocide in Gaza, or using the deportation of immigrants to Cecot as a photo shoot opportunity, or sending strongly worded emails telling immigrants their status has been cancelled and to leave the country within seven days, emails that on multiple occasions have been sent to US-born immigration lawyers, allegedly “in error”, likely as a scare tactic. But the administration has also produced a multi-million dollar ad campaign telling immigrants to self-deport now or face consequences. To a certain extent, the fear campaign is working, it’s making a number of immigrants consider their options. But on the other hand, many do not have the ability to self deport because that requires money and also because they don’t have anywhere else to go. NPR recently reported: “As Adam Isacson, from the Washington Office on Latin America, a research and advocacy group, puts it: "There's not that much you can do to make the experience more miserable for people than the conditions that they're fleeing to begin with."” This means that the “self deportation” plan won’t work and will instead just make life absolutely fucking miserable for people all around the country. Some are opting to pull their children from school, to stay indoors to avoid detection, literally spending all day inside, many are working to obtain passports for their US born children so they can eventually come back. Children as young as kindergarteners are terrified for their parents safety and struggling with mental health issues. NPR quoted one six year old, who has recently been suffering from panic attacks, saying about her mother “I worry something will happen to her, like something will get her.” Day to day life for immigrants here has become unbearable, and many are considering leaving, but leaving also presents major dangers and difficulties, if it is even possible at all.

The CBP One app, created under the Biden administration to help streamline immigration processes, has been rebranded to CBP Home. People who used the CBP One app to immigrate have been advised to leave the country because their entry wasn’t valid. And now the CBP Home app is being used to allow people to notify the government of their intent to “voluntarily depart” from the US. Trump is considering offering a stipend and an airplane ticket to any immigrant here illegally who chooses to self-deport, which does get around that pesky part where moving to a different country is expensive and difficult, but also would require people here illegally to report themselves to the government, their names would absolutely be put on some list, and their ability to ever come back again would almost definitely be zero. So it’s unclear how they plan to swing that but it will certainly be used as a way for him to point and say look I’m being so nice I’m being so generous and understanding they don’t deserve it but I am because I’m just that kind of guy.

And so this is how it starts–inhumane treatment of immigrants who may or may not be here legally, who may or may not have gang affiliation, who may or may not have committed any crimes, we don’t know because they’ve been whisked away to El Salvador without due process. When the government gets caught in the act of denying due process rights and deporting someone in error they can say “oops our bad, but nothing can be done now it’s out of our hands.” They can remove the lawful immigration status of anyone like Mahmoud Khalil who they deem have used speech that threatens US national security. I imagine we’re not far from Pam Bondi arguing that naturalized citizens can have their status revoked because it was obtained fraudulently, and then make up some fraud as pretext. Then of course will be the US citizens who are criminals. Perhaps we can’t deport them but we could lease some land from El Salvador like we do in Guantanamo and send our citizens there, no problem. And we can export the management of those prisons to El Salvador just like we have private prisons on US soil. And next will be dissenting voices even of citizens, who speak out in a way the government doesn’t like. For now, they’re stopping short at executive orders against law firms, at removing security status of Trump’s named foes, but eventually we’ll have gone down the explicit list of foes and then there will be more general categories to go after. Lawyers. Journalists. Leftists. As Justice Sotomayor put it in her concurring opinion in the Abrego Garcia case, “The Government’s argument 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.” Of course, in the ideal world for Trump, we will eventually get to a point where the courts cannot intervene. Which is why the current stand off in a Maryland district court over the deportation of one man has the entire country holding its breath. We don’t know if the government will cooperate with this latest order for depositions and turning over of documents and information. And if they don’t, we don’t know if this judge will order sanctions or hold the government in contempt, something she has indicated she’s considering. And if she does hold the government in contempt of court, that means she can issue daily fines or order jail time for the offending party until they cooperate. This will likely rachet up tension between the executive and judicial branches. And just a few hours ago, those tensions were raised further when another judge, Judge Boasberg in DC who has been overseeing the case in which he ordered planes carrying Venezuelan immigrants to El Salvador to be returned to the United States, issued a ruling in which he found probable cause to find the Government in criminal contempt of the court. This means that he has determined, after giving the government numerous opportunities to explain their actions relating to defying his order to turn the planes around, that their refusal to cooperate likely amounts to criminal contempt. He has given the government until April 23rd to comply or he’ll begin contempt proceedings which will include ordering declarations or live witness testimony to determine who exactly made the call to defy his ruling. Once that person or persons is determined, he will request that the contempt be prosecuted by an attorney for the government. Boasberg likely foresaw the political fight that would ensue when he added the line “If the Government “declines” or “the interest of justice requires,” the Court will “appoint another attorney to prosecute the contempt.” Pursuant to the Federal Rules of Criminal Procedure.

The Trump administration will invariably spin Judge Boasberg’s ruling today, along with any potential contempt proceedings brought by Judge Xinis in the Abrego Garcia case, into clear politically motivated judicial overreach. Not only could Trump order the DOJ not to prosecute the contempt proceedings ordered by the judges, the court marshals that would be in charge of jailing anyone found in contempt are under the direction of the executive branch. So feasibly the President could order the marshals not to comply, which is illegal in a way that feels like the Trump administration could argue their way around in the name of executive power. From there I can’t predict what will happen, as everything in the last 3 months we are entering uncharted territory but I have no doubt that the ghouls pulling the strings behind the scenes have already drafted their response, and I can’t imagine it’s a good one for the rule of law, democracy, or all of our collective rights. As Justice Sotomayor pointed out, if the government can get away with denying due process rights to immigrants, there is nothing to stop them from denying due process rights to all of us.

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And if you liked this episode, you’ll like the one from last week about whether it’s time to leave the US.

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