President Donald Trump’s administration maintains that those that it improperly sent to a prison in El Salvador are themselves responsible for seeking legal relief that could potentially return them to the United States, a position that legal experts say is destined for argument before the Supreme Court.
In the case of Kilmar Abrego Garcia, a Maryland resident whom the Trump administration sent to a Salvadoran prison based on an “administrative error,” the White House has argued that it can't make its partners in El Salvador return the man it sent them.
The argument came in response to a unanimous Supreme Court opinion last week, which required the administration to “facilitate” Abrego Garcia’s return. The Trump administration responded in a filing saying that to “facilitate” his return means simply to “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”
Attorney General Pam Bondi expanded on the administration’s position in a statement, saying that to facilitate Abgrego Garcia’s return would be to provide a plane, but that it’s “up to El Salvador if they want to return him. That’s not up to us.”
In a statement Monday, the president of El Salvador and Trump ally, Nayib Bukele, said that it was also beyond his power to return Abgrego Garcia to the United States. “I don’t have the power to return him to the United States," he claimed.
The position of the administration, taken in the context of Bukele’s statement, suggests that the administration expects Abgrego Garcia to “find his way back to the U.S. border on his own,” according to Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan. She added that she thinks the Trump administration is in violation of a court order for refusing to bring him back.
“They are taking a highly questionable interpretation of the word 'facilitate' to mean that they need only open the door if Mr. Abrego Garcia is able to get out of a terrorist prison,” McQuade said. “If they can do this, they can cause any American citizen to disappear without recourse. At some point, the court will need to hold an official in contempt for violating its order.”
Jeffrey Abramson, professor emeritus of government and law at the University of Texas, agreed that the administration “seems prepared to defy a federal court order and provoke a constitutional crisis.”
“In an unsigned unanimous order, the Supreme Court upheld the order insofar as it directed the Trump administration to 'facilitate' the man’s return, though the Court asked the judge to clarify what exactly it meant to 'effectuate' the man’s return,” Abramson told Salon. “But instead of cooperating, the Trump administration has dug in, refused to do anything, and walked back its earlier concession that the deportation was unlawful.”
Abramson said, though, that it’s “not clear what Judge Xinis can do to compel the Trump administration to comply with the order to facilitate. She may hold Trump administration officials in contempt of court, but how to give teeth to such a contempt citation is not clear.”
Looming over the administration’s refusal to bring Abrego Garcia back to the U.S. is Trump’s apparent intent to send American citizens to the El Salvadoran prison next.
“We always have to obey the laws, but we also 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, that are absolute monsters,” Trump told reporters Monday. “I’d like to include them.”
Bennett Gershman, a law professor at Pace University, told Salon that the question of what protections an American citizen might enjoy, that a noncitizen like Abgrego Garcia was denied, is probably a question of enforcement. He sees this issue going to the Supreme Court, noting that it will also be a question of whether the Trump administration decides to respect whatever order is issued.
“For example, if Trump decides to deport a citizen to the El Salvador prison, as he has suggested he could do and would do under his broad foreign affairs power, and even though the citizen is protected by the Constitution from cruel and unusual punishment under the Eighth Amendment," Gersham said, "how is that right enforced?”
