Last week, the Supreme Court ordered the Trump administration to “facilitate” the return of Kilmar Armando Abrego Garcia, a Salvadoran man deported because of an “administrative error,” back to his home in Maryland. But, so far, the administration has not complied. On this episode, Michelle Cottle, who writes about national politics for Opinion, speaks with her colleagues Jamelle Bouie and David French on what this defiance means for the power of the judicial system and the threat it poses to our rights.
Below is a transcript of an episode of “The Opinions.” We recommend listening to it in its original form for the full effect. You can do so using the player above or on the NYT Audio App, Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts.
The transcript has been lightly edited for length and clarity.
Michelle Cottle: I’m Michelle Cottle, and I cover national politics for Times Opinion.
Since Donald Trump came roaring back into the White House, there has been a looming question about how far his administration will push against the rule of law, the Constitution and the democratic norms that have bound the country together for generations. For a lot of people this week, a line was crossed.
News clip 1: A stunning admission from the Trump administration. It admits in a court filing that a Maryland man was sent to the notorious mega prison in El Salvador.
News clip 2: Kilmar Armando Abrego Garcia was deported by mistake because of what they describe as an administrative error.
News clip 3: The Supreme Court decided last week the U.S. government must facilitate the return of Abrego Garcia. Attorney General Pam Bondi said Abrego Garcia’s return is at El Salvador’s discretion.
And things escalated this week when a federal judge threatened to open a contempt investigation into whether the administration has violated a judicial order. So we find ourselves now in this extremely surreal moment where we are actually having to ask: Can the government stiff-arm the nation’s highest court? And what happens if it does?
To tackle these questions, I am joined by two of my brilliant Opinion colleagues who’ve been digging into this whole mess. David French is a former attorney who’s been looking at how the Supreme Court could and maybe should respond. Jamelle Bouie covers politics through a historical lens and has written about where this whole case fits in American history.
Guys, welcome and thank you so much for coming to help me make sense of this mess.
Jamelle Bouie: Our pleasure.
David French: Thanks, Michelle. I would say it’s a pleasure, but it’s kind of a grim pleasure.
Cottle: Right? Nobody’s having much fun with this. But we might as well dig in and pick it apart as best we can.
So, I guess starting out, I want to ask both of you: What’s happening with Abrego Garcia is unprecedented. I know we use that word a lot. I kind of hate it, but it seems justified here. A man was deported to a country where a judge specifically said he could not be sent. Judges have ordered the administration to return him. And the administration’s response has essentially been, “Nothing we can do. So sorry.” What is your top line reaction to all of this?
Bouie: My initial reaction to all of this is that it really demonstrates the administration’s breathtaking contempt for the rule of law. The entire way these operations are unfolding, where people are being essentially whisked off the street and then, obviously without any opportunity for a hearing, any opportunity to disprove that the government says who they say they are, and then shipped off to this prison where they are essentially disappeared — disappeared in the way that you would associate with the Soviet Union. Even then, people got out of the gulag. It took a while, but it happened. It’s breathtaking.
For anyone inclined to give the administration the benefit of the doubt to say, well, maybe they’ve gotten some things right on some issues. This is the kind of thing that overrides all of that. Who cares if they’re making the right moves on trade policy. Who cares if what they’re also doing is renditioning people to be disappeared.
Cottle: David?
French: I don’t think folks understand how completely the Trump administration is demolishing the Bill of Rights here. Because when you really dive into the legal doctrines, the first thing you have to know is that the protections of the Bill of Rights as a general matter accrue to persons, not just citizens. If you’re a human being in the country, you enjoy the protection of the Bill of Rights. So this sort of argument that, well, this is awful for this undocumented immigrant, but I’m an American citizen and this couldn’t happen to me — it’s just completely wrong. Trump is already talking about bringing American citizens that may have committed particularly heinous crimes and sending them to this El Salvadoran prison.
And so when you have a human being taken from the United States against a court order, sent to a prison — and this prison, by the way, would violate cruel and unusual punishment standards in the United States. And then what he’s saying is, well, now he’s in a foreign country. This is all just a matter of foreign policy, and you can’t make me do anything. Of course, you can’t enter an injunction order against El Salvador. So think this through: If human beings — you’re one of them, if you’re listening to this podcast right now — if human beings, who are covered by the Bill of Rights can now be whisked away from the United States of America, dumped into an inhumane prison, and then an American government just washed their hands of it — now it is not a matter for the courts to intervene because it’s a matter of foreign policy — you’ve just hacked the Bill of Rights. There’s just no other way around it.
And so, as Jamelle said, this is far more fundamental than swings in the stock market or the unemployment rate. This goes to the core of who we are. This goes to the core of the American national promise.
Cottle: OK, before we get into more of the legal ins and outs, which I want to do, I want to ask you both: My suspicion is that the capriciousness and unpredictability of this is kind of the point. A little bit like we talked about — the cruelty is the point with the kids in cages during the last Trump administration.
My assumption is that they want everybody unsettled. They want to send a warning shot that if you cross this administration, anything can happen to you, and they’re not going to sweat the details about it. I think that’s intentional, that they are more than happy to freak everyone out.
Bouie: I think that’s right. Two thoughts: One building off of what David said earlier. I think it’s really important to underline how many of the Constitution’s fundamental protections, as David said, accrue to persons. It’s not about whether you’re a citizen. In fact there’s something, I think, truly, profoundly un-American in the assertion that only citizens have any sort of full right to protections under this system of government. Part of the thing that’s supposed to make the American experiment distinctive in world history is precisely that we protect those who don’t necessarily belong to the polity in a formal way.
Simply being here grants you these rights and protections. Because, again, they accrue to people on the basis of their personhood, on the basis of the fact that they are alive and human beings and they deserve — on a fundamental level — a specific set of protections and rights.
And so this idea that exists on the MAGA right — that like, whether or not you have rights is entirely a function of your citizenship or even, if you’re a citizen, whether or not you have some sort of organic tie to the soil — is just a rejection of the whole American project. At that point, I mean, no offense to our European listeners, but like, go emigrate to Europe. That’s their whole deal. It’s not ours.
The second thing is, I think you’re right to say that this is intentionally capricious, intentionally chaotic. The administration is not competent either, but I think they do want to create an environment of fear. And this too gets to the character of this administration. They’re not even operating in the realm of trying to, in good faith, lead a representative government.
They understand their role as that of dominating the people within the society, which is just at odds with what this is supposed to be about. This is supposed to be a cooperative endeavor. This is supposed to be a collective endeavor. The American system isn’t that the boss man tells everyone what to do, and if you don’t listen to him, he renders you socially dead. That’s not how this is supposed to work.
Cottle: I don’t think their version of American exceptionalism looks anything like that, Jamelle. They don’t dig that point.
Going back to the legal ins and outs — David, what did you take away from Tuesday’s hearing with the district judge?
French: The district judge can see what is plain to everyone: The administration is not acting in good faith here. This is a situation where in any normal American administration, Republican or Democratic, if they had sent someone overseas in defiance of a court order, they would immediately get them back. This would be a one-day story. It would be acknowledged as a mistake made and there would be efforts to address the mistake.
But what is very, very clear is that this administration is acting in open defiance, and then when being called on it, is appealing to some vague language in the Supreme Court case. What does “facilitate” mean? As if the meaning of the word facilitate has been lost to time.
So on the one hand, in the legal sense, they are making these very technical legal arguments that, while it’s plain to everyone, they’re not operating in good faith, they’re not really technically, truly, defying the court.
Then they’re turning around in the court of public opinion and being much more brazen about it. Insulting the judges that are hearing the cases, mocking the very idea that these judges have the power of judicial review — which has been settled since Marbury v. Madison in 1803.
In court, they come in with very hyper-technical arguments to try to get the judge to avoid seeing what’s as plain as the nose on her face, that they’re just mocking her power. They’re mocking the power of the Supreme Court.
Cottle: One of the big challenges here is that the Supreme Court doesn’t really have enforcement tools, right? It doesn’t have the power of the purse. It doesn’t have the power of the sword. So what power do their decisions have?
French: I’m glad you asked that question. I had the privilege of talking to Judge Jeffrey Sutton, a chief judge of the Sixth Circuit, on an episode of “The Opinions” podcast not long ago. I asked him this very question and he said: Look, we don’t have the power of the Treasury. Just like you said, Michelle, we don’t have an army.
Their actions depend on enforcement by other branches of government, so enforcement by the executive branch primarily. And so if the executive branch or if the other branches of government don’t enforce, then the court rulings have little practical meaning in the short run.
But that’s not the end of the story. I wrote a newsletter recently in which I argued that we have a pretty recent history of massive resistance to a court order, and that was the massive resistance to Brown v. Board of Education. That order was not enforced fully for years. I think the last school district to desegregate in the U.S. happened in about 2016.
So that was a very, very long process with an enormous amount of resistance. But the Supreme Court did its job. It did what it was supposed to do. And so I think the court needs to focus on doing its job issuing the rulings that it needs to issue, far more than it needs to try to think about nine-dimensional chess on enforcement.
Bouie: I think that’s absolutely right. The Brown v. Board example is really important because what you see in the reaction to massive resistance is you begin to get the federal government involved, right?
And that’s obviously not going to be possible here, but also other civil society institutions begin getting involved. Courts are obviously taking their lead from the Supreme Court. For instance, the court ruling against the administration, even if the administration says we don’t have to follow that, other actors in this society are going to take that seriously. In part because as of now, the presumption is that the administration isn’t going to be here forever. The court will be here four years from now. The law will still be here.
So the court’s decisions help orient how the rest of the political system and civil society respond to particular disputes. And that is as important, if not more important, than how the administration is going to respond.
If the court is smacking down in a really decisive way these efforts to gut habeas corpus protections and destroy due process, other actors are going to first, maybe be more aggressive in their pushback against the administration and second, immigration lawyers and other practicing attorneys will take their cues and say: We can file suit. We can push back, and we’ll likely get a pretty good hearing from whoever we come before, in part because the court has established what the law is here.
Cottle: So what the court says just in and of itself matters, even if the court can’t strictly enforce it, and it has to go through this yearslong process like we saw with the civil rights movement.
You’ve written a lot about the historical parallels that you see in this, Jamelle. What lessons from the past feel most relevant, either in an optimistic or pessimistic way for you right now?
Bouie: This is neither optimistic nor pessimistic. It’s just an observation about how rights work. I wrote about it this week in my column. In pre-Civil War America, there was a fairly large population of free Black Americans. Not like millions strong, but in states like Ohio and Illinois, there were sizable populations.
But the thing about being a free Black American in this period is that your legal status — not unlike that of an undocumented person today, or someone with a temporary protected status — was incredibly provisional, in part because the states you lived under likely had anti-Black laws that put really tight restrictions on what you could do and what rights you had.
But more importantly, the existence of slavery, the existence of a nonprotected class of people to which you have this racial connection, rendered you insecure as well. So the thing I note in my piece is that free Black Americans were in regular danger of being kidnapped and sent down South with no real recourse.
Even after the Fugitive Slave Act had passed in 1850 or the second Fugitive Slave Act, there wasn’t really due process if a slave catcher showed up in your town and was like: You’re a runaway, right? How are you supposed to prove that you’re not?
I bring that up to note that the existence of slavery of this class of people who are outside the law necessarily degraded the rights and citizenship of the people who were nominally inside the law, and that this extended not just to Black Americans, but to white Americans too.
Part of what precipitates the armed conflict over slavery in the 1850s is precisely the fear among many whites that what is happening to Blacks is going to happen to them eventually.
In our case today, if we’re going to accept the existence of a class of people who can be renditioned abroad, with no legal protections, that necessarily means that the rest of our rights are highly provisional. Once you grant the power to place one group of people outside the law, you’ve effectively granted the power to place all people outside of the law.
Cottle: Which brings us back to the point that Trump has made that he’d be perfectly open to deporting homegrown criminals. How feasible is this? And basically how terrified should we be?
David: As a practical matter, it’s extremely feasible. As a practical matter, it’s the easiest thing to do in the world. He could just put them on a plane now. I think what you are seeing here is a process of testing and prodding. He’s sort of hammering away at various American institutions and traditions. And I think each wall that caves, each barrier that collapses, he just will keep hammering.
I asked the people who have come to me and said: “David, he’s not going to do this to citizens. This is bluster.” And I asked, where is your evidence that he has a line? Because at this point, if you are in the camp of, “Take Trump seriously, but not literally,” — that phrase from 2016 — all of us as Southerners are familiar with, “Bless your heart” on that take. Bless your heart on the idea that this man has self-restraint.
And so you have to ask about that immediate next step, and that immediate next step is, “Citizens, watch out.” And then you might think, well, that’s only criminal citizens. Those are only the citizens who have already done terrible things and have lost many of their liberties.
But look at the power he’s exerting over civil institutions here in the U.S. in blatant violation of their First Amendment rights. Again, where is the line? Show me the line that he’s not willing to cross.
Bouie: I couldn’t say it better than that. There simply isn’t any reason to give this administration the benefit of the doubt. The thing we know about Donald Trump is that he is a habitual line stepper. Wherever you place the line, he’s going to step over it. And when you draw a new line, he’ll step over that.
So they can say: Oh this is only going to be incarcerated people, but the line will be redrawn again. They’ll step over it, and they’ll choose some new category of people. Of course, to Trump, “criminal” isn’t something you do, that is proven in a court of law, it’s a quality of a person. So, who knows who’s going to be a criminal in his estimation, right?
Cottle: I think all three of us would qualify, Jamelle.
Bouie: Oh yeah. We would definitely qualify as criminals.
Cottle: Definitely.
Bouie: This is the place for everyone in civil society to take a stand. I keep thinking of — because of the way my brain works — two movies right now. The first —
Cottle: (laughing) Oh, good.
Bouie: The first — David, I’m sure you’ll be familiar with “Star Trek: First Contact.”
French: Oh, yeah.
Bouie: — when Capt. Jean-Luc Picard is talking about the Borg, and how at every turn the Federation retreats from the Borg, this has to be the place where they take a stand. The line must be drawn here.
The other is Paul Scofield in the 1966 adaptation of “A Man for All Seasons,” where Scofield is playing Sir Thomas More. And when he’s being pressed to arrest someone who hasn’t broken the law but has just sort of violated some norm, his character says, “I give the devil the benefit of the law for my own safety.”
That’s due process. That’s constitutionalism. We have to give even the people in our society who we find the most reprehensible and despicable the benefit of the law. Because if they do not have it, then who does?
Cottle: So you guys have brought up that he’s testing, poking and crossing lines. He’s sledgehammering. And in part I think what they wait to see is if there’s some kind of response that’s overwhelming so that they know they’ve gone too far, or some kind of huge public outcry, or maybe someday Republican lawmakers stand up and say: Enough.
Compounding the problem here in terms of public opinion seems to be that this administration just makes stuff up and says whatever it wants to. So for people who aren’t following it extremely closely, it can sound different. Right?
For instance, on Tuesday, Stephen Miller, one of the president’s top advisers, said emphatically that Abrego Garcia is a gang member. Press secretary Karoline Leavitt called him, “an MS-13 El Salvadorian illegal alien criminal who was hiding in Maryland.”
With this kind of B.S., I’m sure many of Trump’s supporters believe that he is a proven, dangerous criminal gang member — and by him, I mean Abrego Garcia, not Trump.
On the whole do you guys think any of the facts of this case are cutting through to people who are inclined to give Trump the benefit of the doubt?
French: One of the tells about how MAGA is thinking is if you see them start to celebrate in real time that we are talking about this issue. I think a lot of MAGA thinks they’re winning on this issue. If we are talking about Abrego Garcia, then we are not talking about the economic instability that they see as the real threat to their power.
Because they know something, and Michelle, you hit the nail on the head. In people’s minds right now, this is a terrorist gang member of MS-13 that Trump is trying to keep out of America while the far left is trying to bring this terrorist gang member back into America to a town near you. And I think that they think this works for them, actually.
Now that is the hardcore MAGA folks. I’m not sure they’re right about this. I think a lot of people understand the very basics, that the court said: Don’t send him to El Salvador.
And then you sent him to El Salvador. Just bring him back. And if he’s deportable somewhere else, fine. But you violated a court order here, and that was not supposed to happen.
A lot of people just understand that and they understand lawlessness. There was the viral clip from the town hall where the guy says, if I get this $1,200 fine from a court, can I just say no?
Townhall tape: “ If I get an order, to pay a ticket for $1,200 and I just say no, does that stand up? I don’t think so. Because he’s got an order from the Supreme Court and he’s just said no!” (yeah yeah!)
Is that how this works now? So I do think this is cutting through, but no one should be under any illusion here: MAGA believes that the more we talk about immigration, the better it is for Trump. And they may not be entirely wrong about that politically.
Cottle: Jamelle, do you see an opportunity here for Democrats? Or is this all downside?
Bouie: So, I see an opportunity here. The way public opinion tends to respond to Trump with immigration is that the broad public likes the idea of an immigration crackdown. They like the idea that people shouldn’t be able to come here illegally. And along the lines of what David was saying, people understand lawlessness, they see that as being a kind of lawlessness they don’t like.
They don’t like the idea of a flood of people coming in, which is not really what’s happened, but they don’t like that idea. And so when Trump talks about deporting illegal immigrants, the public likes that. They are on board with it. But when it comes to specific, discreet policies, like we are going to separate children from family, people are like: Why? I don’t like that. That seems lawless and unreasonable.
Or when you say we’re going to just start deporting people without giving them their due in court: I don’t like that very much, that doesn’t seem OK. So the opportunity here for Democrats is, don’t talk about immigration as an abstraction. Talk about Abrego Garcia. Talk about the specific people and what’s being done to them. And ask voters: Do you want this to happen to you? Do you want this to happen to your neighbor? Do you want this to happen to the people who you work with? Hey, you’re a contractor. You hire a lot of dudes who are just like Abrego Garcia. Do you wanna see ICE agents come and send them away, for them to be gone for the rest of their lives?
This is a dramatic story. There’s drama here, and the opportunity is in enhancing the drama. And I get the sense that Democrats are beginning to understand this. Chris Van Hollen, the senator from Maryland, the state where Abrego Garcia resides, going down to El Salvador for example.
Chris Van Hollen: I told his wife and his family I would do everything possible to bring him home.
It’s dramatizing this in a way that attracts attention. Abrego Garcia belonged to a sheet metal workers union, and the union leader went on CNN saying: We have got to get this guy back.
News clip: Our union is founded on due process. We want our brother Kilmar to come back and get his due process.
People see that and it signals that this is something to take seriously.
The fact that the administration has gone from saying that this guy should not be here to screaming that he’s a terrorist and he’s a top guy in MS-13 is a sign of weakness in my view. You don’t start turning up the volume like that if you’re confident that the public is on your side. You start turning up the volume like that when you are afraid that they very much are not. And you have to find some way to short-circuit people’s quite natural sympathy.
You learn that this guy has three kids. He’s just a guy living his life, trying to work, and now his wife and his children cannot see him. We don’t really know what’s happened to him.
That scares people and engenders sympathy, and sympathy is a powerful emotion, which is why they’re trying as hard as possible to short-circuit sympathy.
Cottle: That at least gives me a little bit of optimism that this could result in some backlash.
French: Can I crush your optimism just for a moment?
Cottle: Oh, dammit, David.
French: Maybe not crush it, just cast a little doubt on it.
So there’s this very strange thing happening on the right that is very explicitly designed to turn off that sympathy-slash-empathy receptors in people’s minds and hearts. And there’s a series of books that have been taking on the very concept of empathy.
You’ve seen Elon Musk and members of the tech bro world taking on the concept of empathy, saying empathy is inherently toxic and that empathy warps your decision making. So anytime there is an appeal to a person’s decency and humanity — which by the way is what our fundamental rights are based on — anytime you appeal to this sort of inherent dignity of human beings and this idea that human beings should not be treated like this, then that’s toxic empathy. Then you’re trying to manipulate me.
There’s an actually ongoing project to actively try to close the hearts of people on the right to appeals of humanity and dignity. It’s just breathtaking to see.
Cottle: So on a scale of one to 10 then, how worried are you guys about the showdown that we’re looking at between the administration and the courts?
Bouie: I think there will be a showdown between the administration and the courts, but to go back to what I said earlier, I don’t necessarily think that’s going to be the most important thing. The most important thing will be how the rest of society responds. Right?
Like if there’s a showdown between the administration and the courts and everyone is like: Well, I guess if the courts were defeated, there’s not much we can do. Then you should be worried. But if the rest of civil society responds, “No, this is not OK,” then you’re in a better place.
French: I do think what we have been watching generally is a collision between an out of control executive and a responsible judiciary.
The question that I have is how will the judiciary respond if that conflict escalates. And the court should be looking at history now and understand that there are moments when the court has been a giant part of the problem. Dred Scott. Plessy vs. Ferguson. Korematsu vs. United States.
There have also been times when the Supreme Court has been indispensable towards justice. I’m thinking about Brown v. Board, West Virginia State Board of Education v. Barnette. Strongly establishing core elemental free speech rights. You can go on and on where the court has, in the face of intense public pressure, done the right thing.
So this is one of those moments of national choosing. We’ve rested on our laurels for a while, comforting ourselves in some mystical notions of American exceptionalism, as if this is an inherently better country with an inherently better class of people.
Turns out we are human beings just like everybody else, and we’re subject to the same passions and temptations, including the temptation to follow authoritarians and demagogues and the temptation to disregard the rights of others. So this is a time of choosing and it’s not just the court, as Jamelle said, it’s all levels of society.
Bouie: We’re coming up on the 250th anniversary of 1776, of the Declaration of Independence and the revolution. And this was one of the core points of the revolutionary generation: that we’re not different, we’re not special, and that it’s incumbent on us to actively try to be better. To actively try and work to build a different kind of society.
And obviously their efforts were chock-full of all kinds of hypocrisies. You don’t need to tell me about them. I live down the street from Thomas Jefferson. I get it. And yet, that insight and intuition, which seems basic but true, that we are not different, that we are subject to the same temptations, and that part of the work of being a citizen in a representative government — whether you want to call it a democracy or a republic — part of our obligations are to be mindful of our temptations and our weaknesses and do everything we can to mitigate them, both in the building of our institutions and in how we interact and live together as just people in this world.
Cottle: All right, and I’m going to wrap this up by sending out my eternal plea that I’m always saying before every election and after: Democracy must be constantly defended.
When I talk to voters on the campaign trail who are upset because this or that Congress member didn’t save us in this or that way, or they’re not doing more, all I can think of is that it’s not the courts that are going to save us. It’s not Congress that’s going to save us. Everybody has to take a role in standing up for what’s right. Otherwise, yes, we are just as susceptible to crashing and burning as any other country.
With that, guys, I’m going to wish you all a fond farewell, and please come back and let’s do this again very soon.
French: I’d love to anytime, thanks.
Bouie: Hopefully we’ll have a more cheerful topic?
Cottle: Right! We’re not going to let David be such a downer next time. [laughter]
French: I can be a downer whenever I want to, Michelle.
Cottle: Fine. Fine.
Thoughts? Email us at [email protected].
This episode of “The Opinions” was produced by Derek Arthur. It was edited by Alison Bruzek and Kaari Pitkin. Mixing by Carole Sabouraud and Efim Shapiro. Original music by Pat McCusker and Carole Sabouraud. Fact-checking by Mary Marge Locker and Kate Sinclair. Audience strategy by Shannon Busta and Kristina Samulewski. The director of Opinion Audio is Annie-Rose Strasser.
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Michelle Cottle writes about national politics for Opinion. She has covered Washington and politics since the Clinton administration. @mcottle
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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