Imagine the neighborhood bully steals the baseball you’re playing with and hucks it over the fence to his lesser-bully buddy. Give it back, you and your friends cry. He shrugs. How can I give back what I don’t have?
Such is the argument made by the Trump administration on Monday, when it asked the Supreme Court to block a district court’s order they return Kilmar Abrego García from El Salvador. García has been in the US since around 2011 and is married to an American citizen; he was arrested and deported based on what a federal judge said were unproven allegations — unproven meaning they have offered “no evidence” — that he belongs to the MS-13 gang. The Department of Justice argued in a filing that they have no authority over a non-citizen in a foreign country, regardless of how he got there.
The filing doubles down on the MS-13 claim, saying that he is “a member of a designated foreign terrorist organization.” And since he is now in Salvadoran custody, we couldn’t possibly intervene. After all, the DOJ says, “the Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy.” They also complain that the district judge’s order set a deadline of today, Monday, at 11:59 pm, for returning García from El Salvador, and ask “at minimum” for an administrative stay on the order.
This argument quite clearly leads to the darkest possible places: As long as they can get you out of the country fast enough, there is literally nothing to be done about it, legal status or citizenship be damned. If it stands, nothing will stop them from trying this with literally anyone.
What’s more, the administration admits they screwed this up! “[T]he United States concedes that removal to El Salvador was an administrative error,” the filing states. Earlier on Monday, a three-judge panel on the US Court of Appeals for the Fourth Circuit upheld the district judge’s order. “The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” wrote Judge Stephanie Thacker, an Obama appointee. “The government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”
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