Portside

The Trump administration believes it has the legal authority to abduct any individual—citizen or immigrant, documented or not—and illegally deport them to another country without due process. It further claims that it can extinguish all of that person’s constitutional rights by imprisoning them in a foreign nation. And it asserts that once that person has been locked away abroad, the U.S. government has no power or responsibility to bring them home, even if they were indisputably deported in error.

Remarkably, the administration did not make these arguments in secret memos meant to remain hidden from the public, but in a brief to the U.S. Supreme Court filed Monday morning. Donald Trump’s newly confirmed solicitor general, John Sauer, is openly asking the justices to affirm the government’s right to establish a black site in El Salvador to which any individual may be renditioned without legal recourse. Once there, they are subject to indefinite detention, hard labor, torture, and death. According to Sauer, however, American courts are powerless to order their return, even when the government admits to removing them by mistake. If the Supreme Court condones this theory, nobody—including natural-born American citizens—is safe from being disappeared to an overseas prison forever.

Sauer presented this argument in an emergency application asking the justices to halt a district court order demanding the return of Kilmar Armando Abrego Garcia. The Trump administration deported Abrego Garcia to El Salvador, his country of origin, in March, accusing him of membership in the MS-13 gang. (There is no evidence connecting him to any gang, and he has no criminal history in any country.) This deportation was plainly illegal: An immigration judge had granted Abrego Garcia protected status in 2019, finding that he likely faced persecution in El Salvador. U.S. District Judge Paula Xinis therefore demanded his return on Friday, declaring that the government’s conduct “shocks the conscience.” She ordered the administration “to facilitate and effectuate” his return by 11:59 p.m. on Monday.

The administration refuses to do so. And on Monday morning, it asked the Supreme Court to freeze Xinis’ order compelling it to try. (Chief Justice John Roberts temporarily stayed Xinis’ order on Monday afternoon while the full court contemplates Sauer’s request.) The government does not claim that it acted lawfully; to the contrary, the Justice Department has admitted that his removal was the result of an “administrative error.” Rather, Solicitor General Sauer claimed that federal courts have no authority to bring him home. Abrego Garcia, like many other migrants targeted by the Trump administration, has been locked up in CECOT, a notorious Salvadoran megaprison. And because he is in “the custody of a foreign sovereign,” Sauer said, the U.S. government may not be able to get him back—and courts cannot ask it to try.

Sauer’s argument is as sweeping as it is chilling. “The United States does not control the sovereign nation of El Salvador,” he wrote, “nor can it compel El Salvador to follow a federal judge’s bidding.” So even though U.S. government deposited Abrego Garcia in El Salvador—and pays the Salvadoran government to keep him there—it is allegedly unable to retrieve him. Only “the Government of El Salvador” can decide whether to release him now, and under what conditions; all the U.S. government can do is ask, and the courts cannot compel it to do so.

It is difficult to believe that Salvadoran officials would refuse to send back Abrego Garcia at the request of the Trump administration; after all, El Salvador has already sent back several migrants and eagerly complied with every other American request so far. But Sauer’s legal argument is even more perverse than his practical complaint: He told the Supreme Court that federal courts cannot order the return of a migrant held in CECOT—and that courts do not even have the authority to make the U.S. government ask for a migrant to be sent back. Because these migrants are out of American “custody,” he wrote, they fall entirely outside the courts’ jurisdiction. And because bringing them home implicates “the executive’s conduct of foreign relations,” federal courts also lack the power to make American officials try to secure their return.

Sauer’s argument here is extraordinarily weak. As Steve Vladeck has explained, courts have long held that a person may be legally in the custody of the government if they are being held by another party at the government’s request. This concept, known as constructive custody, gives courts ongoing jurisdiction over the individual, and preserves judicial authority to vindicate their rights. Abrego Garcia may be in the physical custody of El Salvador, but he is clearly in the constructive custody of the United States: held overseas at the Trump administration’s request, under an agreement negotiated by the administration and paid for with American funds. If the U.S. government asks for him back, we have every reason to believe El Salvador will comply.

According to Sauer, however, courts may not invoke constructive custody to demand the return of migrants from CECOT, because Article 2 of the Constitution somehow prevents them from doing so. Obviously, there is no constitutional provision that lets the president indefinitely detain people without due process (and several that expressly forbid it). But Sauer wrote that requesting the return of migrants from CECOT would involve “sensitive international negotiations” and “diplomatic relations” that weigh on “foreign policy.” These “core Article II prerogatives,” he insisted, belong to “the president, not federal district courts.” So once the government has successfully imprisoned a migrant at CECOT, courts lose their constitutional authority to protect their rights at all, let alone attempt to have them released and brought home.

Xinis rejected this argument, as did the U.S. Court of Appeals for the 4^th Circuit in an opinion filed shortly after Sauer petitioned SCOTUS. The 4^th Circuit’s reaction was scathing. Judge Stephanie King pointed out that the administration is constructing “a slippery—and dangerous—constitutional slope” by disclaiming “any ability to return those it has wrongfully removed by citing their physical presence in a foreign jurisdiction.” If it can get away with this, she asked, “what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?” The answer, of course, is nothing. “If due process is of no moment,” then the government could snatch any American citizen off the street, falsely accuse them of being a “criminal alien,” ship them to an overseas prison, then disavow any responsibility to bring them back. Even Judge J. Harvie Wilkinson, a conservative Ronald Reagan appointee, agreed that the government had to try to “facilitate Abrego Garcia’s release,” stating bluntly: “There is no question that the government screwed up here.”

If the Supreme Court grants Sauer’s request, it will effectively sign off on the creation of CECOT as a black site from which many people will never return. The government intends to send hundreds of Venezuelan migrants there if it persuades SCOTUS to lift a separate restraining order against those deportations. But as the 4^th Circuit noted, the list of victims will likely include not just migrants but also citizens: Immigration and Customs Enforcement regularly arrests Americans in error, and up to 1.5 percent of people it detains are, in fact, citizens. The administration’s suspension of due process all but guarantees that innocent people, including Americans, will be caught up in this dragnet. This case is not just about one deportation. It’s a blueprint for how to make anyone disappear.

Mark Joseph Stern is a Slate senior writer.

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