Due Process and the Abrego Garcia Case
One hardly had to be Nostradamus to have predicted, as I did soon after Trump was sworn in, that the day was fast approaching when President Trump would openly defy a court order to do (or to refrain from doing) something, and then we’d have a constitutional crisis of some magnitude. The Abrego Garcia case shows that we’re either getting closer to, or have already reached, that grim milestone.
I assume everyone, by now, is aware of the basic outlines of the Abrego Garcia story,[*] but here’s a very brief recap of the key facts:
[*] A good summary is in the district court’s 4/6/2025 order [available here].
- A 2019 court order expressly prohibits Abrego Garcia’s removal to El Salvador because he faced a “clear probability of future persecution” there and had “demonstrated that El Salvadoran authorities were and would be unable or unwilling to protect him.”
- In March, 2025 without any notice or a warrant, ICE agents seized him, placed him on a plane, and transported him to an El Salvadoran prison (the “Center for Terrorism Confinement,” (CECOT)).
- Abrego Garcia has not been charged with any crime. No warrants have been issued against him or his property. The government has asserted – in various court papers and, yesterday, at a presidential news conference and a televised meeting in the Oval Office – that he is a member of MS-13, a designated terrorist organization. That may be true; the government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true. The President has told us, though, that it is true – but he is, remember, the Chief Prosecutor.
- The US district court in Maryland ordered the government to “facilitate and effectuate” Abrego Garcia’s return to the United States, and gave the government a deadline for his return. The 4th Circuit affirmed, and refused to stay the district court’s order.
- The Supreme Court affirmed the order last week, with a qualification. The Court declared – with no dissents – that
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