This is a Constitutional Crisis

During each of Donald Trump’s terms in office, we’ve heard that the government could be headed for a constitutional crisis: a situation in which the government faces a conflict its fundamental laws are not able to resolve. In this case, it’s because one branch of government is openly defying another, in direct violation of the Constitution. 

The federal government consists of three branches: executive, legislative, and judicial. Our system of checks and balances ensures that one branch cannot exert unchecked power. (This is Schoolhouse Rock-level civics; please stop reading and go sign up for a Social Studies class if any of this is unfamiliar.) The executive can veto bills passed by the legislature; the legislature can override vetoes or even impeach and remove the executive; the executive appoints judges and justices to federal courts; the legislature confirms (or blocks) those judges and justices. And federal judges can declare laws unconstitutional or countermand unlawful executive actions. 

This system is the bedrock of our democracy. This is not a partisan claim. All Americans know this—or should.

And so all Americans need to know what is happening right now. 

There is a lot going on right now with deportations and disappearings, and you’ll be hearing more from me about that topic in the near future. But today I’m going to focus on just one case. Kilmar Abrego Garcia is from El Salvador. He entered the United States illegally as a teenager, and now has lived here for over a decade; he is married to an American citizen, and is father to an American citizen child and stepfather to two more. In 2019, a legal protective order from a federal immigration judge granted him permission to remain in the United States. The order specifically prohibits his deportation to El Salvador, due to the likelihood he would be in danger from gangs there. (In his sworn testimony, Abrego Garcia said he fled El Salvador to escape MS-13, which was extorting his family and pressuring him to join the gang.) ICE did not appeal the ruling. 

Since then, Abrego Garcia has spent six years making regular check-ins with immigration officials. He has never been charged with a crime. 

Then, on March 12 of this year, he was pulled over by ICE officers and told that his immigration status had changed. (It had not.) He was arrested in front of his young son and put into an ICE vehicle. By the next day, he had been moved out of state. On March 15, he told his wife he was being sent to the Terrorist Confinement Prison (CECOT) in El Salvador. That was the last time anyone has spoken to him—although his wife did recognize him in a photo from the El Salvadorean prison: his head shaved, handcuffed, being forced through a hallway, bent double, his head shoved downward by two guards in full ski masks. 

How could this happen, you may be asking? How can a man who has been checking in routinely with immigration officials, who has never been charged with a crime, and whom the government is explicitly prohibited from sending to El Salvador, now be in El Salvador at our government’s behest? And not only in El Salvador, but in a nightmarish prison intended to hold the most heinous criminals?

I’ll let this court filing made by the government answer for itself: “On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error (emphasis mine).” 

So, the government acknowledges that he should not have been sent to El Salvador. They made an “error.” To be fair, most people think of an “administrative error” as accidentally writing yesterday’s date on a document, not arresting an innocent man and within 72 hours throwing him into a brutal prison in the one country on earth you’re specifically not allowed to send him to. But I digress. 

What’s important is that as soon as the Trump Administration realized they had inadvertently committed this colossal injustice, they explained the mistake to El Salvador and made certain Mr. Abrego Garcia was on the next plane home to Maryland. 

Except, of course, that is not what has happened at all. The Administration claimed in the same court filing that their hands are tied—and so are the court’s—because now he’s in El Salvador’s jurisdiction. 

White House press secretary Karoline Leavitt told reporters that Abrego Garcia “was a member, actually a leader, of the brutal MS-13 gang.” Apart from there being no evidence of this at all, one has to wonder, if there is any truth to this allegation, why ICE met with him this January for his routine check-in, and then sent him on his merry way? 

Vice President JD Vance tweeted that Abrego Garcia was “a convicted MS-13 gang member with no legal right to be here,” despite the man never having been charged with a crime, much less convicted, found to be in danger from MS-13, not a member, and with every legal right to be here. A dizzying pile-on of falsehoods in such a short space. 

A quick recap: the government wrongly deported a man and had him imprisoned without charge or trial, then said there was nothing they could do about it, then slandered and libeled him. 

Next, four days after the Administration admitted in court that they had wrongly deported him, federal judge Paula Xinis ordered the Administration to return Abrego Garcia to the US within three days. 

Rather than follow this objectively legal, moral, and ethical order, the adminstration appealed the following day, requesting an emergency stay. On April 7, the deadline by which they were ordered to have returned him, the Administration leapfrogged the appeals court, which hadn’t even yet ruled on their appeal, and asked the Supreme Court for an administrative stay, which would allow them to leave Abrego Garcia rotting in CECOT until the Supremes could rule on the case. Chief Justice John Roberts agreed—fortunately for the Administration, because the Fourth Circuit Court of Appeals did reject the government’s appeal. 

Last week, on April 10, the Supreme Court unanimously upheld the lower court’s ruling, requiring the Administration to “facilitate” Abrego Garcia’s return and then handle his case as though he had never been deported. Their decision acknowledged that Judge Xinis’s deadline had passed and was therefore now null, and they did not set a new one. They also instructed Judge Xinis to have “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” They told the government to “be prepared to share” what steps it has taken to follow their ruling, and remanded the case back to Judge Xinis for further clarification and instruction. 

The following day, April 11, Judge Xinis ordered the Administration to “take all available steps to facilitate the return” of the man they had wrongly deported and imprisoned. She also ordered them to provide her with an update on his location, as well as daily updates about what steps they are taking to bring him back. Government lawyers asked for more time. In subsequent filings they confirmed his location, but flatly refused to communicate what steps they were taking to bring him home—in direct defiance of both Judge Xinis and the Supreme Court. 

Another day later, April 12, Trump posted on his Truth Social site regarding the men he has had sent to El Salvador: “These barbarians are now in the sole custody of El Salvador, a proud and sovereign Nation, and their future is up to President B [Bukele] and his Government.” 

And now, yesterday, April 14, President Trump hosted President Bukele of El Salvador at the White House. Bukele, who has called himself the “world’s coolest dictator,” was asked by a reporter whether he planned to return Abrego Garcia. “How can I smuggle a terrorist into the United States?” he mused. “Of course I’m not going to do it. The question is preposterous.”  

Trump followed up with, “They’d love to have a criminal released into our country. These are sick people.”

At that same meeting with Bukele, President Trump and Deputy Chief of Staff Stephen Miller both claimed, incredibly, that the Supreme Court had ruled 9-0 in their favor. 

Yesterday, for its required daily update to Judge Xinis, the government submitted this filing, which not only failed to declare what steps it is taking to facilitate Abrego Garcia’s return, but suggested he should not and will not be returned. It also quoted Bukele’s refusal to send him back, and again claimed it has no authority to “forcibly extract an alien from the domestic custody of a foreign sovereign nation.”

Trump has said repeatedly that he is going to make Canada our 51st state. He says he is going to take Greenland away from the sovereign nation of Denmark “one way or another.” He says he is going to take back the Panama Canal from Panama. His Administration helped make sure Andrew Tate—an outspoken Trump supporter—was permitted to come back to America from Romania, where he is charged with rape and sex trafficking. 

But suddenly, El Salvador’s sovereignty is an insurmountable obstacle. It’s simply impossible for the President of the United States ask a favor of—let alone exert any form of pressure on—the man who sat chummily beside him in the White House, and whom we are paying $6 million to house the men Trump has had imprisoned in CECOT. 

It’s a preposterous lie.

Trump is openly defying a ruling of the Supreme Court—and his oath of office.

The constitutional solution to this problem is impeachment, conviction, and removal from office. But the framers intended Congress to be filled with people of honor who would uphold their oath to the Constitution above any party loyalty. The Republicans in this Congress have proved they have no higher loyalty than fealty to Donald Trump. 

This is a constitutional crisis. 

I don’t know what will happen next. I don’t know what Judge Xinis will do, or even what she can do in the face of this unprecedented lawlessness perpetrated by the executive, whose entire purpose is to “take Care that the Laws be faithfully executed.” I don’t know if the majority-Republican-nominated Supreme Court will step in with a more forceful ruling, or how he’ll react if they do. In the absence of a Congress with the spine and moral compass to carry out their constitutionally-prescribed duty, we are adrift. 

All I know is that all of this is wrong. (I haven’t even touched on the dangerous, probably unconstitutional policy of deporting people without due process, let alone sending them straight to prison for the rest of their lives without a trial.) The foundations of our constitutional system are crumbling before our eyes. By setting himself above the judicial branch, including even the Supreme Court, Donald Trump is showing open contempt for the Constitution he swore to uphold. Our foundations are crumbling because he is taking a jackhammer to them. Every single person who claims to love America should be appalled.

If this is allowed to stand, the American experiment will be over. Our constitutional republic will have ceased to exist. Whatever government we have afterward will be something else. 

Update, April 17:

On April 12, Kilmar Abrego Garcia’s attorneys filed a motion pointing out President Trump’s own words from the previous day, that if “the Supreme Court said bring somebody back I would do that.”

And yet, on April 14, rather than complying with orders from both Juge Xinis and the Supreme Court, the DOJ again appealed Judge Xinis’s ruling, arguing that the courts have no right to order the executive branch to bring Abrego Garcia home. 

On April 15, Judge Xinis, apparently fed up with the defendants’ noncompliance, ordered expedited discovery, a process in which relevant parties will be deposed under oath. This process must be completed within two weeks. 

In the meantime, Senator Chris Van Hollen of Maryland, where Kilmar Abrego Garcia is a resident, has traveled to El Salvador in an attempt to see him, verify his well-being, and hopefully facilitate his release. The Senator met with the Vice President of El Salvador (the president was not in the country), who refused to allow him to enter the prison or even speak to Abrego Garcia on the phone. When asked, the Vice President admitted his country has no evidence Abrego Garcia has committed any crime. The Senator asked why then they wouldn’t release him. “His answer was that the Trump administration is paying El Salvador, the government of El Salvador to keep him at CECOT,” Van Hollen said. 

I want to note that this United States Senator was not permitted to enter the prison, even though multiple Republican members of the House of Representatives have toured the prison and posted photos of themselves standing in front of crowded cells full of men. 

The Administration has continued to slander Abrego Garcia, even when it backfires on them. On April 16, Attorney General Pam Bondi tweeted a link, saying, “We are releasing additional information on Kilmar Abrego Garcia.” I’ve taken the liberty of including a screenshot from the linked documents here:

The allegations made against Abrego Garcia in these documents (including the accusation that he was part of a gang that operates in a state where he has never lived) were on a form filled out by a cop who, weeks later, would be suspended, indicted, and enter a guilty plea for revealing confidential information about a case to a prostitute. The allegations are so flimsy (and dismissed years ago by the judge who ruled he could not be sent to El Salvador) that in an earlier appeal for this case, Fourth Circuit Court of Appeals Judge Stephanie Thacker wrote: “If the Government wanted to prove to the district court that Abrego Garcia was a ‘prominent’ member of MS-13, it has had ample opportunity to do so but has not—nor has it even bothered to try.” 

Most crucially, just today, April 17, the Fourth Circuit Court of Appeals unanimously rejected the Trump Administration’s appeal, asking them to block Judge Xinis’s order for them to facilitate the return of Kilmar Abrego Garcia. 

I want to highlight some of the words of Judge Wilkinson, who wrote the opinion for the panel. (Judge Wilkinson is a Reagan appointee.) These are directly from today’s ruling (all emphases mine):

“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. 

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

He writes that if the Administration were to continue on this course of refusing to “make what was wrong, right,” it “would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”

And most poignantly, in his final words before denying the government’s motion, Judge Wilkinson writes, “We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”

What we can do:

No member of the House of Representatives should know a moment’s peace until either the President complies with court orders or articles of impeachment are filed. Forget emailing. Call your representative, especially if they are a Republican, and politely demand they do their duty and restrain this lawless president. Demand impeachment. Call every day. https://www.house.gov/representatives/find-your-representative