At any moment, the Supreme Court will issue a decision in the case of Kilmar Abrego Garcia, a Maryland man whom the Trump administration admits it deported to a notorious Salvadoran mega prison due to “administrative error.” The ruling could pose a make or break moment, not just for the life of Abrego Garcia, but for what kind of country we are going to be.
Less than three months into Trump’s second term, the stakes of litigation over its agenda are extremely high. If the Supreme Court requires the US government to facilitate Abrego Garcia’s rapid return to US soil, it will have held the line by requiring that the rule of law governs Trump’s deportation powers. But if the court halts Abrego Garcia’s return, the United States is on track to enter a dark new chapter in which anyone—noncitizens and citizens alike—can be shipped off to foreign prisons with no hope of return. These are the tools of control exercised by authoritarian regimes on other continents. But that doesn’t mean it can’t happen here.
“The government could whisk individuals to foreign prisons in violation of court orders and then contend…there is nothing that can be done.”
Abrego Garcia is an undocumented immigrant from El Salvador. In 2019, the government attempted to deport him and claimed, on very weak grounds, that he was a member of the MS-13 gang. On appeal, an immigration judge found that he faced “a clear probability of future persecution” if returned to El Salvador. The judge ordered that Abrego Garcia not be removed to El Salvador. The government never appealed. Abrego Garcia is married, raising three children, gainfully employed, and has never had a run-in with the law.
When the Department of Homeland Security picked him up in March and put him on a plane to El Salvador, it did so against the immigration judge’s clear order. The government itself concedes his removal was an “administrative error.” Yet, the government does not want to retrieve him and is fighting a judge’s order to bring him back. Instead, it argues that even if removed in error, the courts have no authority to facilitate a prisoner’s return from abroad. What’s done is done, Trump administration lawyers argue: once you arrive at El Salvador’s brutal labor camp, it’s as if the US government has thrown away the key.
If the Supreme Court accepts the government’s argument, it would destroy Abrego Garcia’s life. But under its logic, untold numbers of other noncitizens and citizens are in jeopardy of permanent and unlawful disappearance. It wouldn’t matter who you are. If the government scoops you off the street and ships you off to another country without providing a chance to make your case in court, there is nothing you, your family, or a judge could do. The president’s power over national security and foreign affairs, the government argues, cannot be impinged, even if it violated an individual’s constitutional rights to deport them. But this logic leads to a license for Trump to disappear anyone, possibly forever.
Constitutional law luminaries Erwin Chemerinsky, Martha Minow, and Laurence Tribe stress the gravity of this case in an amicus brief they submitted to the Supreme Court. If the administration’s argument prevails, they warn, “the Executive Branch would possess a shuddering degree of power—power that the President could wield in extreme and extraordinary ways, including against American citizens that the President simply disfavors.”
A three judge panel from the Fourth Circuit Court of Appeals unanimously rebuked the government’s arguments in a ruling that seized on the dystopian powers the government is seeking. “The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done,” Judge James Wilkinson warned in a concurrence. “It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.”
It’s no surprise that Wilkinson’s concurrence found its way into Abrego Garcia’s brief to the Supreme Court; In 2003, Wilkinson authored an opinion granting the federal government the power to indefinitely detain a US citizen without the opportunity to challenge their confinement in court if it designated him an “enemy combatant”—a decision overturned by the Supreme Court. If Wilkinson, a Reagan-appointee who has accorded the government extreme deference in the arena of national security and detention, can see that the Abrego Garcia case is a bridge to “perfect lawlessness,” then perhaps the Supreme Court will as well.
Abrego Garcia’s case was first filed in federal district court in Maryland, where a judge ordered the government to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.” The government appealed to the Fourth Circuit. Then, on April 7, before the circuit court had issued a decision, the government appealed to the Supreme Court, asking the highest court to immediately halt the lower court’s order so that the government wouldn’t have to retrieve Abrego Garcia that day. It also asked the high court to fully vacate the district court’s order. After this appeal was filed, the Fourth Circuit released its opinion siding with Abrego Garcia. As Stephanie Thacker, a judge on the appellate court, explained in that opinion, “The irreparable harm in this case is the harm being done to Abrego Garcia every minute he is in El Salvador.”
“It takes no small amount of imagination to understand that this is a path of perfect lawlessness.”
But shortly after that opinion was issued, Chief Justice John Roberts halted the lower court’s order temporarily while the highest court decides whether to grant the administration’s request for a fuller rebuke of the lower court. It is this decision that will indicate whether or not there is a meaningful right to challenge detention before removal to a foreign country or whether that right can be overridden by an alleged “administrative error.”
In a separate ruling Tuesday over challenges to removals to El Salvador under the Alien Enemies Act, the Supreme Court reaffirmed that every person transferred has the right to meaningfully challenge that removal in court. Abrego Garcia’s lawyers quickly filed a notice with the Supreme Court to remind them that Abrego Garcia had the same right to challenge his removal but was denied it—a constitutional violation that must be remedied. Thus, the Abrego Garcia case is an immediate test of the Supreme Court’s own ruling: Will the right to challenge removal in court be one that can be denied by administrative error—either a genuine error or an alleged one?
It’s important to realize administrative errors are not that uncommon in immigration enforcement. For example, a Government Accountability Office report found that between 2015 and 2020, ICE likely deported 70 US citizens. The government can and does retrieve people from foreign countries after unlawful removal. Moreover, there no reason to believe the Trump administration wouldn’t make the same argument about people it has deliberately removed.
One reason to worry is the government’s response when a federal judge ordered it to turn around the planes taking hundreds of alleged Venezuelan gang members to El Salvador’s Terrorism Confinement Center, or CECOT, on the basis that the detainees were not afforded the opportunity to challenge their removal. The government made the decision not to turn the planes around, but instead to continue on to El Salvador, unload the planes, and place the detainees in the care of a foreign country. The president of El Salvador, Nayib Bukele, a leader who himself employs authoritarian tactics and illegal confinement to maintain control, mocked the efforts to stop the planes. He posted an article on X about the order to turn the planes around and commented “Oopsie… Too Late” followed by the tears of joy emoji often used to gloat over the suffering of others. Marco Rubio, the Secretary of State, retweeted him. Dodging a court order wasn’t an error, it was a joke.
“We are not stopping,” border czar Tom Homan said on Fox News two days later. “I don’t care what the judges think.”
To those who think this would never happen to a US citizen, consider that Trump is already publicly contemplating how to send his own citizens to El Salvador. On Tuesday, White House Press Secretary Karoline Leavitt confirmed that the administration is exploring its legal options for sending US citizens to CECOT, which is known for rampant human rights abuses and inmate deaths. “The president has said if it’s legal, if there’s a legal pathway to do that, he’s not sure, we are not sure if there is, it’s an idea that he has simply floated and has discussed,” Leavitt confirmed Tuesday. To be clear, there is no legal way to deport US citizens. But the Abrego Garcia case could pave the way. It should be assumed, by Leavitt’s own assertion, that if the claim of administrative error becomes an unreviewable blank check to deport people ineligible for removal, the administration will use it.
To lessen the shock of her words, Leavitt caveated that deportations of US citizens would only happen to “heinous, violent criminals who have broken our nation’s laws repeatedly. These are violent, repeat offenders in American streets.” But that’s cold comfort.
The cold endpoint of this logic is to disappear people into foreign prisons—possibly forever.
You don’t have to be a violent criminal for the government to claim that you are one. Again, the Abrego Garcia case demonstrates the danger. According to the brief from the government, Abrego Garcia is a “verified” and “prominent” member of the MS-13 gang, which they argue nullifies the 2019 order against his removal to El Salvador. Contrast this to the brief submitted by Abrego Garcia’s lawyers, which clarifies that the evidence of Abrego Garcia’s membership in MS-13 was always shoddy: In 2019, “the Government offered two pieces of ‘evidence’: first, Abrego Garcia was wearing ‘his Chicago Bulls hat and hoodie,’ and second, ‘a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.’” Moreover, as the Fourth Circuit pointed out, the government had ample opportunity to prove his gang affiliation in the district court but did not.
In other words, in Abrego Garcia’s case, we already see the government pluck a law-abiding father off the streets and claim without evidence that he is a “prominent” gang member. Without a right to remedy the government’s actions, the same thing could happen to anyone else. If the government feels no compunction to even provide proof of the claim that Abrego Garcia is a gang member, what is protecting anyone else from the erroneous designation of criminal in order to facilitate their removal? The government is showing in this case that it is willing to operate not only beyond the rules and jurisdiction of the courts but also with its own set of facts.
Finally, the government contends that in sending prisoners to El Salvador, it is relinquishing jurisdiction over them. Despite the Trump administration’s disturbing arrangement to use El Salvador’s CECOT for a fee, it contends that everyone it sends to El Salvador is now solely at the mercy of that country. Because courts have no authority to direct the president’s power to conduct foreign affairs, the government argues, they have no authority to instruct the government to correct its errors by negotiating with a foreign government.
That is a terrifying contention—it means anyone sent there could be lost forever. It means that the US has created a loophole under which it can simply throw up its hands every time it is asked to retrieve someone it doesn’t want to and say, ‘Sorry, it’s not our jurisdiction anymore—and it’s not a judge’s business either.’ There may be assertions of criminality or some other excuse, but the cold endpoint of this logic is to disappear people into foreign prisons—possibly forever.
The Supreme Court could mandate Abrego Garcia’s return and strike a blow to this authoritarian menace the Trump administration is trying to create. Or, it could let this Maryland father rot in a foreign labor camp, signaling that it will look the other way when the government makes its next “administrative error.”
This post has been syndicated from Mother Jones, where it was published under this address.