Kilmar Abrego Garcia’s case has presented the Trump administration with unprecedented circumstances which could put into question our constitutionally protected right to due process, and the system of checks and balances intended to prevent authoritarian control by any branch of government. This comes after Salvadoran President Nayib Bukele’ visit to Washington and his stated unwillingness to send Abrego back to the U.S. Let’s take a look at what’s at sake.
Due Process
Abrego, who had been granted withholding of removal, was deported to El Salvador without due process. The Fifth Amendment of the U.S. Constitution states that the federal government cannot deprive one of “life, liberty or property without due process of law.” This applies to all persons within the U.S., including non-citizens.
Due process is understood as the obligation that our government has to give someone who has been accused of a crime the right to a fair trial, which was denied to Kilmar Abrego. Not once before getting sent to CECOT did Abrego have an opportunity to argue his defense, to present to a court his valid immigration status, or to refute the baseless claims about ties to MS-13.
This administration has shown its willingness to punish someone without abiding by the constitutionally guaranteed right to due process, which should ring an alarm for anyone who has an interest in protecting our rights. The administration has also presented a dangerous model to imprison anyone without due process by sending detainees to countries outside of the jurisdiction and claiming they can do nothing about it. It provides a framework for authoritarian jailings beyond the power of U.S. citizens.
This presents a loophole to undermine any person’s constitutional rights. It establishes a framework for an authoritarian government to arrest anyone, ship them off to a foreign prison and claim that the individual is outside of U.S. jurisdiction and that nothing can be done.
As the Fifth Amendment does not pertain solely to citizen or non-citizen, these actions put at risk the right that all people have to due process as we know it. It could also potentially set precedent for the government to take action against anyone for any reason, imprisoning anyone without providing a fair trial.
Checks and Balances
While the Supreme Court has upheld the decision by a lower court to “facilitate” the return of Kilmar Abrego Garcia, the constitution provides no way for the courts to enforce their decision. The separation of powers and system of checks and balances relies on the recognition of the court’s authority by the other two branches and in this case, the Executive.
The administration has argued that US officials cannot compel the Salvadorian government to return him. However, the deportation of prisoners to El Salvador is a paid agreement between the two countries, an agreement which theoretically may be terminated. The funds which the U.S. has given El Salvador are reportedly to assist in the funding of the Salvadorian Prison system, which the U.S. government could use as leverage to pressure Abrego’s return.
Additionally, while Bukele states that he does not have the power to return him to the United States, the Salvadoran Government has extradited Salvadoran citizens to the U.S. allowing the U.S. government to fulfill it’s constitutionally mandated duty to provide due process. The U.S. and El Salvador also have an extradition treaty, giving both governments full power to send Abrego back should this administration have full intent to engage in its constitutional responsibilities.
This goes to show the multiple different avenues and historical legal precedent which the administration can use to follow the court’s orders, which should be quite easy for an “expert negotiator”.
If the Administration should proceed to resist, this may put into question the extent of the power that the Judiciary has. It could set extremely dangerous precedent which undermines the systems of checks and balances designed by the constitution and creates a framework for the authoritarian imprisonment of anyone, citizen or not, without a trial.






