Among the most disturbing ideas floated by the Trump administration in recent weeks is the possibility that it will send U.S. citizens to be imprisoned by the Salvadoran government. Nayib Bukele, El Salvador’s Trump-friendly president, reportedly made the offer in recent weeks. Trump raised the possibility with reporters in the Oval Office last week, though he conceded that he “[doesn’t] know what the law says on that.”
White House press secretary Karoline Leavitt also said it was under serious consideration. “The president has said if it’s legal, right, if there is a legal pathway to do that, he’s not sure,” she told reporters at a press briefing. “We are not sure if there is. It’s an idea that he has simply floated and has discussed very publicly as in the effort of transparency.” She claimed the practice would be reserved for “heinous, violent criminals who have broken our nation’s laws repeatedly.”
The Trump administration’s reflexive habit is to insist that everything it is doing is perfectly lawful, and that anyone who says otherwise—a legal expert, a newspaper, an opposing litigant, a federal judge, the Constitution—is actually wrong. So it is highly telling that Trump and his allies are openly admitting that they have no idea whether this plan would even be legally viable. That hesitance on the administration’s part is well founded: It would be flagrantly illegal and spectacularly unconstitutional to send an American citizen into exile.
First, a word on words: Some commentators have described this potential practice as “deportation.” This is not accurate. That term only applies to the removal of noncitizens from a country or political community to which they do not legally belong. More accurate terms would be “banishment” or “exile.” For clarity’s sake, I’ll use the term banishment for removals from one U.S. state or city to another—more on that later—and the term exile for forcibly removing a U.S. citizen to another country, as Trump is mulling.
Would it be legal? Absolutely not. No law allows a federal court to sentence a defendant to serve their sentence overseas. Nor is there any statute that allows the president to unilaterally remove a U.S. citizen to another country at a whim. In the 1936 case Valentine v. United States, for example, the Supreme Court held that the president has no power to extradite a U.S. citizen to another country except when authorized by a treaty or an act of Congress.
The Trump administration cannot cite a 1911 extradition treaty between the United States and El Salvador to justify its proposal. For one thing, the extradition process only applies if a U.S. citizen is facing a criminal trial in a foreign country. The Trump administration has not framed its idea in these terms because it clearly envisions U.S. citizens charged with federal crimes being transferred there. Even if it did, the State Department told Congress in 2001 that the 1911 treaty does not obligate either country to extradite its own citizens to the other one and that a new treaty would have to be ratified to carry it out.
Trump officials may ultimately try to lean on court precedents on banishments within American jurisdictions. Some states, such as Georgia and Mississippi, banish criminal defendants from returning to specific counties as part of their sentences. In 2013, a D.C. judge ordered a man who climbed a tree during Barack Obama’s second inauguration to stay away from the federal enclave. Earlier this year, a federal judge ordered some leading participants in the January 6 insurrection to not return to the District of Columbia without permission from the courts.
But those judicial sentences are far afield from what the Trump administration is envisioning. Exiling an U.S. citizen to El Salvador would be unconstitutional on multiple levels. The Supreme Court has never directly ruled on whether a U.S. citizen could be exiled to a foreign country because the federal government has never attempted it. However, the courts have operated under the assumption for at least the last 150 years that U.S. citizens cannot be denied reentry into the United States.
In the 1922 case Ng Hung Fo v. White, for example, a group of U.S. citizens of Chinese descent sought to prevent their deportation under the nativist Immigration Act of 1917. The Supreme Court held that the federal government could not summarily remove them without a hearing where they could prove their citizenship. “To deport one who so claims to be a citizen obviously deprives him of liberty,” Justice Louis Brandeis wrote for the court. “It may result also in loss of both property and life, or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law.”
The high court has also rejected efforts to deport U.S. citizens by stripping them of their citizenship. In the 1963 case Kennedy v. Mendoza-Martinez, the justices struck down portions of the Immigration and Nationality Act of 1952 that sought to remove citizenship from draft-dodgers. Four years later, in Afroyim v. Rusk, the Supreme Court ruled that natural-born U.S. citizenship cannot be “shifted, canceled, or diluted at the will of the federal government, the states, or any other governmental unit.”
“We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race,” Justice Hugo Black wrote for the court in Afroyim. “Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”
While the federal government retains the power to strip citizenship from naturalized Americans if they obtain it fraudulently or unlawfully, the justices have set a high bar for such efforts to succeed. In the 2016 case Maslenjak v. United States, the court unanimously rejected the Obama administration’s efforts to denaturalize a Bosnian Serb woman who lied to immigration officers about her husband’s participation in the Yugoslav Wars, holding that incidental omissions during the immigration process were not enough.
From these cases and others we can divine a few principles. U.S. citizenship is constitutionally sacrosanct, and U.S. citizens cannot be involuntarily deprived of it. A privilege of U.S. citizenship is the right to live within the borders of the United States of America. To remove a U.S. citizen from those borders to another country would be to effectively deny them citizenship, especially if the government takes steps to actively prevent their return, like throwing them in a Salvadoran gulag.
This is not to say that banishment and exile are completely alien to American soil. The Massachusetts Bay Colony sentenced religious dissident Anne Hutchinson to banishment in 1637, prompting her to resettle in Rhode Island with other non-Puritans. Quakers like Lawrence and Cassandra Southwick, my eleventh great-grandparents, were “despoiled, imprisoned, starved, whipped, and banished” by colonial courts in Massachusetts in 1660; they died of exposure on Shelter Island, New York shortly after their removal. By the revolutionary period, however, banishment came to be seen as a practice of British oppression.
Early Americans often opposed the imperial metropole’s practice of “transportation,” whereby it would sentence criminals in England to exile in the British Empire’s far-flung colonies, much to the consternation of the existing colonists. As the Revolution neared, continental assemblies also despised the British government’s habit of bringing some colonial defendants to England for certain crimes, hoping that English juries would be friendlier than colonial ones. Among the Declaration of Independence’s grievances against the Crown was “transporting us beyond seas to be tried for pretended offences.”
Indeed, the Constitution’s Framers likely would have considered exile to be among the “cruel and unusual punishments” banned by the Eighth Amendment. James Madison condemned the Alien and Sedition Acts in a 1799 report to the Virginia legislature by rejecting its sweeping powers for deporting “alien enemies.” He argued that they “were never meant to be subjected to banishment by any arbitrary and unusual process” from state or federal officials, and spoke at length about the cruelty of banishing an “alien friend” from the states.
If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country where he may have formed the most tender of connexions, where he may have vested his entire property, and acquired property of the real and permanent, as well as the movable and temporary kind; where he enjoys under the laws a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for, and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.
If that is the level of disgust that the Constitution’s principal author showed toward deportations of noncitizens by the John Adams administration, then it is not hard to imagine how Madison—and, likely, the rest of the Framers—would have viewed the proposed exile of American citizens by the Trump administration. In a presidency filled with lawless acts, few would be more egregious than this one.
The post Trump’s Wildly Unconstitutional Plot to Banish U.S. Citizens to Gulags appeared first on New Republic.
