‘Uncharted waters’: US edges closer to constitutional crisis over deportee

Washington: The US is edging closer to a constitutional crisis over a man wrongly deported to a notorious Salvadorean prison, with the Trump administration resisting a Supreme Court order to “facilitate” the man’s return.

Both Trump and El Salvador’s President, Nayib Bukele – who has called himself “the world’s coolest dictator” – dug in against the court order during Bukele’s official visit to the White House on Monday (Tuesday AEST).

Donald Trump meets El Salvador’s President, Nayib Bukele, in the Oval Office.Credit: AP

Kilmar Abrego Garcia, an undocumented Salvadorean national living in Maryland, was removed last month on one of three deportation flights at the centre of a high-profile court challenge to the Trump administration’s use of the 1798 Alien Enemies Act to deport alleged gang members.

Garcia was technically not deported under that law. The government alleges he is a member of the gang MS-13, now designated a foreign terrorist organisation, although he has not been convicted of any such crimes. He was given protected immigration status in 2019, and lawyers for the government admit he was deported after an “administrative error”.

In a 9-0 unanimous decision last week, the US’s highest court said the administration must “facilitate” Garcia’s return. But there is now a legal stoush over what exactly that means.

The administration argues the matter is one of foreign relations: Garcia is locked up on foreign soil, under the control of El Salvador’s government. In legal filings, the Department of Justice says all that the court’s order requires it to do is remove any domestic obstacles to the man’s return.

Jennifer Vasquez Sura, the wife of Kilmar Abrego Garcia, speaks to the media during a press conference earlier in April.Credit: AP

“That’s up to El Salvador if they want to return him, that’s not up to us,” Attorney-General Pam Bondi said in the Oval Office during Bukele’s visit. “If they wanted to return him, we would facilitate it, meaning provide a plane.”

Bukele said it was “preposterous” to suggest he should send the man back to the US and described him – without evidence – as a terrorist. “I don’t have the power to return him to the United States,” he said while sitting beside the US president. “How can I smuggle a terrorist into the United States?”

Kilmar Abrego Garcia.Credit: AP

Trump suggested the mainstream media was lobbying for Garcia to be returned. “They’d love to have a criminal released into our country ... these are sick people,” he said, gesturing to reporters.

Casting the dispute as one of foreign policy, not domestic law, Secretary of State Marco Rubio said Garcia was illegally present in the US, and the court could not compel his return.

“No court in the United States has the right to conduct the foreign policy of the United States,” he said. “It’s that simple, end of story.”

Legal scholars and political opponents are now debating whether the US is at the start or on the edge of a constitutional crisis for which there would be little precedent.

Jean Reisz, an associate professor of law at the University of Southern California, said the country was “in uncharted waters”. Other than impeachment by Congress, there was no mechanism by which a court could compel the president to act.

“The court can determine whether the president’s actions are lawful or violate the Constitution or any other American law,” she said. “But there’s really no one to enforce the president. A judge can say the president is wrong and needs to do something to correct the situation, but there’s really no mechanism for the court to enforce that against the president.”

El Salvador President Nayib Bukele said it was preposterous to suggest he could return the man to the United States.Credit: AP

Reisz said this might be why the Supreme Court made the “soft ask” that the administration facilitate Garcia’s return, and handed the matter back to a lower court. “[They] didn’t go as far as saying they’re demanding the return, so there’s a little wriggle room there for the government.”

Democrats escalated their response following the Oval Office meeting between the two presidents. Former House Speaker Nancy Pelosi, a veteran lawmaker, said Trump sat in silence while Bukele “smeared” Abrego Garcia as a terrorist.

She said the Trump administration was “defying the law, disappearing people and yielding to a fellow tyrant at the expense of the victim’s family”.

Speaking at the Cleveland Club of Ohio, Democratic congressman Ro Khanna of California said if the administration defied a court order, it would constitute a “red line”, and Republicans and Democrats alike needed to speak up.

Reisz, the law professor, said the situation was at least the start of a constitutional crisis. “This kind of uncertainty is part of the definition of a crisis ... whether or not the president is going to follow the law.”

Meanwhile, Trump told reporters he would also like to deport American citizens to El Salvador but was not sure that it would be legal.

“We also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters,” he said.

“I’d like to include them in the group of people to get them out of the country, but you’ll have to be looking at the laws on that.”

with AP

Get a note directly from our foreign correspondents on what’s making headlines around the world. Sign up for our weekly What in the World newsletter.