Third Update: On May 4, 2025, President Trump was asked the question, “don’t you need to uphold the Constitution of the United States as president?” In a brilliant display of “wrong answers only,” to quote the Internet meme, the President of the United States — apparently forgetting the oath of office he twice swore — responded “I don’t know . . . I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.”
Second Update: On May 1, 2025, a Trump-appointed federal district court judge in Texas has issued an injunction prohibiting future renditions to the El Salvadoran gulag. In response, Mr. Trump appears poised to rendition Venezuelans (and others) to the failed state of Libya instead.
First Update: As of April 19, 2025, the Supreme Court temporarily stayed the rendition of Venezuelans to the El Salvadoran gulag. The one-page ruling stated “the government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.” The Department of Homeland Security said in a statement, “we are not going to reveal the details of counter terrorism operations, and we are complying with the Supreme Court’s ruling.”
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ORIGINAL EDITORIAL
President Donald Trump has finally provoked a constitutional crisis, and it only took him a little under three months since his inauguration.
And make no mistake, the constitutional crisis is here. As of April 14, 2025, the Trump administration is openly defying a Supreme Court order to “facilitate” the return of a Maryland man, Kilmar Armando Abrego Garcia, who the administration accidentally renditioned to a Salvadoran gulag — described by many as a “human rights black hole” — that currently houses about 40,000 “terrorists” and gang members.
The Trump administration later admitted in open court that Abrego Garcia was protected from removal. He was snatched off the street in front of his wife and young child (both U.S. citizens) because of an “administrative error.” (In a chilling display of moral cowardice, the Justice Department lawyer who made that admission was fired for discharging his ethical duty of candor to the court.)
At one point, Stephen Miller claimed — among other absurd lies about this case — that Abrego Garcia was correctly renditioned to this Central American black site, and that no error was made. He is alone in espousing that position, though the administration has gone out of its way to tarnish Abrego Garcia.
I’ll pause here for a moment. Abrego Garcia is probably not a saint. There certainly appears to be evidence that he was the subject of a domestic violence restraining order in the past. But he has never been convicted of a crime, and his 2019 arrest and asserted affiliation with MS-13 is complicated. The detective who prepared the gang affiliation report later used to rendition Abrego Garcia was not only fired by his department for gross misconduct, but he was actually indicted for abusing his office. Abrego Garcia wasn’t even charged with a crime in connection with that 2019 arrest.
It’s fair to say that the source of the allegations against Abrego Garcia may have some credibility problems. Or perhaps, he really is a member of MS-13 who has pulled the wool over everyone’s eyes. One thing I can say for sure: he didn’t have “M S 1 3” tattooed in Arial font on his knuckles, and those tattoos were not indicative of anything (other than poor taste in tattoos).
But that’s the point. Credibility questions and the truth of allegations must be evaluated in a court of law — not unilaterally by the executive branch, without any semblance of due process.
To be even more blunt: The only people suffering from “Trump Derangement Syndrome” in this country are those who believe the executive branch has — or should have — the power to: (1) defy an immigration judge’s order prohibiting Abrego Garcia’s removal; (2) deprive him of due process before removing him; (3) ignore a Supreme Court order to facilitate his return after admitting his removal was accidental; and (4) indefinitely detain him in a foreign prison funded by $6 million in U.S. taxpayer dollars — all while claiming the most powerful nation on earth is powerless to make the foreign country we’re paying to detain him undertake efforts to return him to U.S. custody.
I’ll reiterate once again: The issue isn’t whether Abrego Garcia was or was not wrongfully detained. That’s for a court to decide. While Democrats receive plenty of fair criticism over being process-oriented rather than outcome-oriented, can we all agree that the executive branch shouldn’t detain people in this country and ship them to a foreign country’s prison without any judicial recourse?
Even actual terrorists held in Guantanamo Bay had the right to file a petition for habeas corpus — a court order requiring the government to show cause for continuing to detain an individual. Abrego Garcia is being denied that right under the façade that he’s being held by a foreign government.
A recent opinion written by Judge J. Harvie Wilkinson III — one of the most staunchly conservative federal appellate judges currently serving on the bench — deftly summarizes the constitutional horror show that is currently unfolding.
Judge Wilkinson is a Reagan appointee who is so conservative, he authored the 4th Circuit’s majority opinion in 2003 holding that the U.S. government could detain Yaser Esam Hamdi — a U.S. citizen captured on the battlefields of Afghanistan — indefinitely without access to counsel or a court.
The Supreme Court would later overturn his decision in Hamdi v. Rumsfeld, and extend the right of habeas corpus to non-citizens detained in Guantanamo Bay five years later in Boumediene v. Bush. (Unlike the current administration, once the Supreme Court decided those cases, the Bush administration complied.)
Here’s what Judge Wilkinson had to say about Mr. Abrego Garcia’s case:
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 also expresses concern about what could happen next. What is stopping the Trump administration from rounding up U.S. citizens and shipping them off to El Salvador, never to be seen or heard from again — unless, of course, the president of El Salvador “decides” (i.e., is instructed by President Trump) to release them back to the U.S.?
The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.
If you say that the courts will stop the Trump administration from doing so, you’re delusional. Federal courts are unable to enforce their orders — as they have neither force, nor will, but merely “judgment.” They rely on the executive branch to voluntarily comply with their edicts.
If you say Congress will exercise its ultimate power of impeachment, you’re dreaming. Congressional Democrats lack the power to stop the Trump administration from violating the Constitution because they aren’t in power. And our Republican-controlled Congress is nothing short of a rubber-stamping politburo that has abdicated its constitutional responsibility to check and balance the executive branch — as its repeated failure to stop the dismantling of federal agencies and programs demonstrates.
Then, there’s the wishful thinking that has been the last bastion of “Lé Resistance” over the past decade — that President Trump’s impulse for political self-preservation, craving for broad popularity, and narcissistic desire for historical relevance will make him back down before he causes an irreparable dissolution of our constitutional order.
But this time just feels different.
As present, the Trump administration is unapologetically acting without color of law.
Yet, the Trump administration has spent the past three months gaslighting the American people into thinking it holds a level of unbridled power that is antithetical to the Founding Fathers’ vision, and well beyond the virtually unfettered discretion the Supreme Court has ceded to the executive branch over the past 30 years in the areas of national security and foreign relations.
In Abrego Garcia’s and other immigration cases, the Trump administration claims it has unilateral power and discretion — not just under a statute intended only for times of declared war against a sovereign country, but also generally under Article II of the U.S. Constitution. But Trump does not have the pseudo-monarchical prerogative he claims — one matched only by the world’s worst autocrats (and formerly asserted by kings and queens).
We are heading for a true constitutional breakdown, and by the time we get there, no institutional guardrails will be left.
The modern Democratic Party is undeniably feckless, misguided and incompetent. If returned to a majority in the House, they will be so consumed by meritless (and unpopular) investigations into the Trump administration — for sins real and imagined — that they will have little time to do their real jobs: passing laws.
And yet, the only chance we have left to restore checks and balances by curbing the executive’s unapologetic excesses is by voting for them in the midterm elections.
Hopefully, the American people are smart enough to realize that an impotent, gridlocked and divided government is better than allowing a burgeoning authoritarian strongman to become a fully vested dictator.
the irked moderate 