On Deporting U.S. Citizens
Terry H. Schwadron
April 16, 2025
Serious conflicts over the Constitutional validity of Trump administration decisions are starting to flood us.
Donald Trump has repeated his endorsement for sending American citizens convicted of violent crimes to prison in El Salvador, although he said Attorney General Pam Bondi is still studying the legality of the proposal. It’s a vast extension over what started as targeting migrants who commit crimes.
“If it’s a homegrown criminal, I have no problem, no,” Trump told reporters in an Oval Office meeting with Salvadoran President Nayib Bukele on Monday. “I’m talking about violent people. I’m talking about really bad people.”
The open reach for dictatorial control in which Trump alone — or his legal designees — decide who is a “bad guy.” Trump had a similar response when Bukele first offered to jail convicted American criminals in February. Except . . .
Except that the threat to go after U.S. citizens came in a session in which Bukele doubled down on Trump’s refusal to seek return and release of a Maryland immigrant deported in “administrative error” and in apparent violation of federal courts, including the Supreme Court. Trump argues that while the deportee is in Salvadoran hands, he remains beyond the authority of U.S. officials, and Bukele said he would not release the man.
Except that this is the same Trump who decided this week that his own cybersecurity leader who said there was no fraud in the 2020 election should be prosecuted, and that another Trump staffer who published a tell-all White House book should be considered a “treasonous,” an overly loose use of language aimed at fulfilling his desire for political retribution, not crime.
Except that Trump’s team continues to misread what the Supreme Court ruled in saying that the government needed to “facilitate” the return of Kilmar Abrego Garcia, who has not had a hearing to consider whether he is or was a member of a Salvadorean gang.
Except that the Trump administration is grabbing “really bad” people off the street and whisking them to El Salvador without due process hearings required by the courts. Except that some number of the more than 200 sent to a notorious El Salvador prison, including Abrego Garcia, face no criminal charges in this country.
Except that the policy Trump is annunciating runs afoul of the spirit and rule of legal procedure, and almost certainly violates various due process and cruel and unusual punishment clauses of the Constitution, and that sets Trump up to overrule courts, juries and the law itself.
Constitutional Clashes
Only hard-core Trump loyalists might not acknowledge that there is a White House campaign underway that threatens individual rights, the authority of the courts and our understanding of justice.
Trump already is well beyond his promises to limit migrant deportations to those convicted of crimes; in announcing two new batches of deportee flights to El Salvador from holding facilities at Guantanamo, there was no information about whether those involved were given due process hearings as required by courts. There has been no decision about use of a 1798 Alien Sedition Act under emergency war powers.
Trump already has committed to deporting, degrading and ousting university students and faculty members who, he thinks, are not supporting Trump foreign policy. Just this week, a Columbia University graduate student with a legal residency document was arrested and removed without process from a Vermont citizenship appointment under provisions of the separate Immigration and Naturalization Act that is being used for those involved in “pro-Palestinian” protests.
On Monday, another judge temporarily halted Trump’s announced removal of temporary protective status immigration for people from Haiti, Cuba, Nicaragua and Venezuela, saying again that deportees are due individual hearings.
Retribution Trump is wielding deportations and possible lifetime confinement in unregulated Salvadorean prisons as a weapon against a host of “political” enemies who buck the vision that Trump wants to enforce for the country — and is setting up to extend deportations to U.S. citizens.
As with migrants, Trump is talking about “bad people” convicted of serious crime, but his actions say that distinction will prove no constraint from extending his desires to imprison those who investigated Jan. 6 rioting or who see him as leaning too much in Russia’s direction, for example.
Incorrect ‘Facts’
Repeatedly during the meeting with Bukele, Trump advisers misstated the known facts of the Supreme Court decision and the Abrego Garcia case.
The Supreme Court owns some of this, by crafting language that is allowing White House interpretation. Trump and his top aide Stephen Miller essentially snubbed the Supreme Court’s ability to direct the administration to take any action on foreign policy and made clear that if anyone was going to return Garcia to the United States, it would have to be Bukele, who rejected any such notion.
Are we truly to believe that Trump, who thinks he can bring China, Russia, India, Europe to bend on tariffs and trade cannot get Bukele, whom he is paying $6 million to house prisoners, to release one guy to comply with U.S. courts — likely only to return him when due process has happened?
In federal District Court in Maryland, where Judge Paula Xinis had ordered the government to facilitate Abrego Garcia’s return for a due process hearing, the judge scolded the administraion for having done nothing and said she was issuing expedited orders of discovery to apply the law. Under oath, government officials will have to disclose how the deportation came about towards determining a remedy, she said. Before the hearing, Justice Department lawyers said they would facilitate his entry to the U.S. “if he presents at a port of entry,” meaning that El Salvador release him and get him to the border.
Weekly or more frequently we are hearing of yet another judge striking down blanket orders from the White House as unconstitutional, only to start new cycles of Trump administration efforts to circumvent the orders.
It’s a rolling crisis for democracy.
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