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WE SHOULD ALL BE VERY, VERY AFRAID  
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Erwin Chemerinsky and Laurence H. Tribe
April 9, 2025
New York Times
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_ Trump is seeking to establish a truly chilling proposition: that no
one can stop his administration from imprisoning anyone it wants... If
the government can disappear any people it wishes, we all should be
very, very afraid. _

Credit: Jose Cabezas/Reuters // New York Times,

 

Of all the lawless acts by the Trump administration in its first two
and a half months, none are more frightening than its dumping of human
beings who have not had their day in court into an infamous
maximum-security prison in El Salvador — and then contending that no
federal court has the authority to right these brazen wrongs.

In an astounding brief
[[link removed]] filed
in the Supreme Court on Monday, the solicitor general of the United
States argued that even when the government concedes that it has
mistakenly deported someone to El Salvador and had him imprisoned
there, the federal courts are powerless to do anything about it. The
Supreme Court must immediately and emphatically reject this
unwarranted claim of unlimited power to deprive people of their
liberty without due process.

That would seem to be the obvious response. It was Thomas Jefferson
who called the right of habeas corpus to protect against unlawful
detention one of the “essential principles of our government.”

Jefferson’s concerns are underscored by the case of Kilmar Armando
Abrego Garcia, a lawful resident of the United States, whom the
federal government admits it wrongly deported to El Salvador. He has
been incarcerated in El Salvador along with some 200 Venezuelan
migrants deported there last month by the Trump administration, which
says they were involved in criminal and gang activity.

On Friday, Judge Paula Xinis of the United States District Court in
Maryland ordered
[[link removed]] Mr.
Abrego Garcia’s return. In a subsequent opinion
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on Sunday, she wrote that “there were no legal grounds whatsoever
for his arrest, detention or removal.” His detention, she added,
“appears wholly lawless.”

One might think the Trump administration would at least try to correct
its grievous mistake by attempting to secure Mr. Abrego Garcia’s
release through diplomatic channels. El Salvador’s president, Nayib
Bukele, has been called
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great friend of the United States” by Marco Rubio, President
Trump’s secretary of state.

But no, the Trump administration does not seem willing to lift a
finger to fix the calamity it created for Mr. Abrego Garcia and his
family.

Karoline Leavitt, the White House press secretary, responded to Judge
Xinis’s order by saying the judge should contact President Bukele
because “we are unaware of the judge having jurisdiction or
authority over the country of El Salvador.” Her suggestion that a
federal judge play the role of a diplomat, rather than provide legal
relief to Mr. Abrego Garcia, is unworthy of any presidential
administration.

Why hasn’t the Trump administration acted to secure Mr. Abrego
Garcia’s release? After all, he is there because of a government
screw-up.

The answer can only be that it is using this case to establish a truly
chilling proposition: that no one can stop the Trump administration
from imprisoning any people it wants anywhere else in the world. In
its brief to the Supreme Court, the administration argues that the
only remedy available to a person in custody is a writ of habeas
corpus, a court order that a person in custody be brought before the
court to determine if the detention is lawful. But the administration
also contends that federal courts have no authority to issue such a
writ when the person is held in a foreign prison.

There can be no doubt about what this means.

There would be nothing to stop the government from jailing its critics
in another country and then claiming, as it is now, that the courts
have no jurisdiction to remedy the situation. Armed with this power,
the government would know that Immigration and Customs Enforcement or
the F.B.I. or any federal law enforcement agency could apprehend any
people, ignore the requirements for due process and ship them to El
Salvador or any country that would take them. These individuals would
have no legal recourse whatsoever from any American court. The
administration could create its own gulags with no more judicial
review than existed when Stalin did the same thing in the Soviet
Union.

Judge Xinis ordered the government to return Mr. Abrego Garcia by
11:59 p.m. on Monday. The Supreme Court paused that order on Monday to
allow the justices to review the matter. But it shouldn’t take much
time for the court to conclude that every minute Mr. Abrego Garcia is
wrongly incarcerated is a minute too long.

The Supreme Court also handed down a ruling
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Monday in a case involving the Trump administration’s mid-March
decision to remove noncitizens in the United States who are members of
the Venezuelan gang Tren de Aragua without any hearing at all. Five
Venezuelans went to court to block the president’s plan, and a
Federal District Court judge did just that. But roughly 200
Venezuelans were deported anyway. The administration has argued that,
if it needed any authority to take that action beyond the power
inherent in the presidency, such authority could be found in the Alien
Enemies Act of 1798.

But as Judge Karen Henderson of the U.S. Court of Appeals for the
District of Columbia Circuit explained in a March 26 decision
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the deportation of those roughly 200 Venezuelans, that 1798 law was
limited to formally declared wars or imminent military invasions of
the United States. Until the Trump administration, the law had been
invoked only three times — during the War of 1812, World War I and
World War II, when it was used to intern Americans of Japanese
ancestry. That action has since been all but universally condemned as
a shameful overreaction to the attack on Pearl Harbor.

By invoking the Alien Enemies Act, the government claims it can
circumvent the usual procedures for deportation, including due
process.

In an unsigned opinion, which the Supreme Court handed down on Monday,
a 5-to-4 majority (with Justice Amy Coney Barrett joining the three
liberals in the minority) said the Trump administration could continue
to deport Venezuelan migrants using the 1798 law. But the court also
said migrants fighting deportation in this case could challenge their
detentions, though only through habeas corpus petitions, which it said
needed to be filed in federal court in Texas, where they were held,
not in Washington, D.C., where the government officials who made the
decision on their fate are. The court said these individuals should be
given notice and a hearing before being deported.

As for those who have already been deported to El Salvador and
imprisoned there, it is troubling that the court did not speak to
whether they can get any relief from the courts.

The justices did not answer critical questions like: Can the
government use the Alien Enemies Act of 1798 in this manner? Did the
lower court have the authority to issue the order to stop individuals
from being taken to El Salvador? Is there any legal basis for the
Trump administration to put individuals in an El Salvador prison? And,
crucial to Mr. Abrego Garcia’s pending case, will the court reject
the Trump administration’s claim that no federal court can hear a
habeas corpus petition of someone held in a foreign country?

Justice Sonia Sotomayor, in a dissent, identified how much is at
stake: “The implications of the government’s position” are
“that not only noncitizens but also United States citizens could be
taken off the streets, forced onto planes and confined to foreign
prisons with no opportunity for redress if judicial review is denied
unlawfully before removal. History is no stranger to such lawless
regimes, but this nation’s system of laws is designed to prevent,
not enable, their rise.”

If the government can disappear any people it wishes, dump them in a
Salvadoran dungeon and prevent any court in this country from
providing relief, we all should be very, very afraid.

_[ERWIN CHEMERINSKY
[[link removed]] is
the dean of the law school at the University of California,
Berkeley. LAURENCE H. TRIBE
[[link removed]] is an emeritus
university professor of constitutional law at Harvard. They have filed
an amicus brief
[[link removed]] with
the Supreme Court in the Abrego Garcia case.]_

* dictatorship
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* Fascism
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* Unlawful arrest
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* illegal imprisonment
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* rendition
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* Donald Trump
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* Trump 2.0
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* Kilmar Armando Abrego Garcia
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* Abrego Garcia
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* Immigrants
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* immigrant workers
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* ICE
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* Immigration and Customs Enforcement
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* homeland security
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* deportations
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* Habeas Corpus
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* Alien Enemies Act
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* Supreme Court
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* SCOTUS
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* Civil Liberties
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* Civil Rights
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* Bill of Rights
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* Constitution
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