This story was updated on April 10, 2025 at 9:27 pm.
America has reached a very dangerous moment, as the Supreme Court’s indulgence of President Donald Trump’s belief in his own untrammeled authority collides with the justices’ expectation that he will abide by their decisions.
This evening, the Supreme Court upheld part of a lower-court decision ordering the Trump administration to seek to retrieve Kilmar Abrego Garcia, whom—as The Atlantic first reported—the administration has acknowledged it mistakenly dispatched to El Salvador’s notorious Centro de Confinamiento del Terrorismo, or CECOT. Abrego Garcia, who came to the United States illegally but was allowed to stay after a judge ruled that he was likely to be persecuted by gangs in his native El Salvador, would be the first person publicly known to be released from CECOT.
“The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the justices wrote in an unsigned order.
The fact that the order was issued without dissent was remarkable. The Roberts Court has indulged Trump at nearly every turn, first writing the anti-insurrection clause out of the Fourteenth Amendment and then foiling his federal prosecution by inventing a grant of presidential immunity with no basis in the text of the Constitution. Justice John Roberts and his colleagues have deployed a selective proceduralism to avoid directly confronting the Trump administration, one that contrasts with their alacrity in cases where they are seeking their preferred outcome. Yet the confrontation they sought to avoid has arrived nonetheless, and even the Trumpiest justices, such as Samuel Alito and Clarence Thomas, joined their colleagues in informing the Trump administration that what it had done was illegal and should be remedied.
Abrego Garcia has lived in the U.S. for more than a decade and has no criminal record. He is married to a U.S. citizen and has an American child, and the only evidence the administration has produced to link him to gangs is a single allegation from an anonymous informant in 2019. Due process exists because the state is supposed to prove its allegations against you before depriving you of life and liberty. The Constitution envisions law enforcement as flawed and subject to potential abuse, not as infallible.
Nevertheless, the Trump administration has continued to insist that Abrego Garcia is a dangerous gang member in order to justify sending him to an overseas Gulag that has been accused of torturing inmates. The Trump administration’s argument, that no court could order it to retrieve Abrego Garcia despite his being deported by mistake, has broader implications: It means that the administration could similarly maroon U.S. citizens abroad “by mistake” and abandon them. Trump has openly flirted with the possibility of purposefully deporting American citizens.
“The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong,” Justice Sonia Sotomayor wrote in a statement agreeing with the decision, joined by Justices Ketanji Brown Jackson and Elena Kagan. “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.” In a previous ruling on this case, the conservative federal judge J. Harvie Wilkinson III wrote that “this is a path of perfect lawlessness, one that courts cannot condone.”
Although the high court did precisely what it should in such a circumstance, the justices are nevertheless taking an enormous political risk. Trump acolytes have publicly and repeatedly floated the idea of defying court orders with which they disagree. By some accounts, they may already have done so in this case, ignoring a federal judge’s verbal directive to turn back the plane carrying men sent to CECOT—90 percent of whom lack a criminal record, and 100 percent of whom were deported without due process. (The administration insists that it was following the judge’s written directive.) If Trump defies the Court here, then America will have taken an important step toward authoritarianism and anti-constitutional government. The stakes of the case may explain the lack of dissent, a clear show of force—the justices have no power in a system in which court orders are optional.
The consequences of this evening’s ruling are difficult to predict. The Trump administration could choose to comply with the court order and secure Abrego Garcia’s return. It could also choose the path of open defiance. But it might instead make a token effort to retrieve Abrego Garcia and then shrug, telling the Court that it tried its best but was unsuccessful. The Salvadoran government has declared that anyone who is imprisoned at CECOT will never leave—if Abrego Garcia returns, he could speak out about the conditions he experienced at the facility, which could have political consequences both for the Salvadoran leadership and for the Trump administration.
If the Trump administration retains the ability to send anyone in the United States to be imprisoned abroad, then the rights of American citizens, and not just immigrants and the undocumented, are meaningless. If the administration makes an insincere effort to bring Abrego Garcia back, then those rights become the very sort of “parchment barriers” James Madison feared would be easily violated. If Trump defies the Court, there is little to restrain him from acting as an autocrat, given the supplication of Republicans in Congress.
The risks here for constitutional government are tremendous. Yet even if this case now unfolds in the ideal way, Trump’s aspirations toward unchecked power mean that the nation will never veer too far from the “path of perfect lawlessness,” at least not as long as he remains in office.
Article originally published at The Atlantic
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