Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Aaron Reichlin-Melnick: Thank you for having me.
Reichlin-Melnick: Yeah. This case made it to the Supreme Court with the Trump administration arguing that every person had no right to see a judge—that if they wanted to, they could file a habeas corpus lawsuit, but other than that, the government did not have to tell them or give them any time to file a lawsuit before it put them on a plane. It won on one narrow issue. It won on whether or not a court in Washington, D.C., could issue a broad class action halt on these removals while it determined whether the invocation of the law was legal. But they didn’t win on anything else. And in particular, all nine justices made very clear that the government’s original method of rushing people onto planes with no notice and no warning is not appropriate, and that, in the words of Justice Roberts, people must be given a “reasonable time” to actually have a meaningful opportunity to file a habeas corpus lawsuit saying, Hey, I shouldn’t be subject to this law, or even, Hey, this law is not being appropriately invoked.
Reichlin-Melnick: So importantly, it’s a win for due process in theory. In reality, filing habeas corpus lawsuits is not exactly easy, especially when we’re talking about people who are going to be held in ICE detention centers—potentially in the Deep South, far away from their families, far away from their resources. On top of that, they might not even get a notice from the government that they’re going to be put on a plane for, well, however long the Trump administration determines as a “reasonable period of time.”
Reichlin-Melnick: At its core, this is actually a pretty simple issue. Mr. Abrego Garcia is a Salvadoran man who came to the United States in 2011 at the age of 16. He has been living in the U.S. for the previous 14 years, generally staying out of trouble. He only had one single arrest ever on his record in 2019 for loitering outside a Home Depot while looking for day labor. That arrest led to him being put in ICE detention in 2019. There was an allegation that he was linked to MS-13 made by the local police who arrested him for loitering, and an immigration judge in 2019 ruled that he could be deported, but there was one country that he could not be deported to: El Salvador. Then on March 12, the Trump ICE officials came by his house, arrested him, told him his status had changed—which was not true—sent him to Texas, and three days later put him on the plane to El Salvador, the one place that it could not legally deport him to.
Sargent: I just want to be clear that the government’s argument is that no court can compel them to rectify this “error” and bring back Abrego Garcia because that would intrude on the president’s Article 2 powers to negotiate foreign relations, correct?
Sargent: OK. We now have set the table to get to where I want to get to, which is Sonia Sotomayor’s dissent. This is in the case involving all the Venezuelans removed to the El Salvadoran gulag. Sotomayor dissented from the court’s ruling, which is that those could continue for now, and she was joined by the two other liberals and partly by Amy Coney Barrett in the dissent. Sotomayor raised a potential scenario in which it does turn out that many of the Venezuelans were removed in error, which looks likely to have happened because in some cases we’re talking about them concluding that these are gang members based on soccer tattoos and things like that. And in discussing this, Sotomayor cited the case of Abrego Garcia, who as we’ve said was removed by mistake, with the government saying they can’t bring him back or they’re under no obligation to bring him back.
Reichlin-Melnick: There is no limit on it, as I think she correctly noted. And she is not the only judge to have said virtually the identical thing. Just a few hours before the Supreme Court weighed in about the Alien Enemies Act in Mr. Abrego Garcia’s case, you have the Fourth Circuit weighed in. And Judge Wilkinson, a Reagan appointee who is a conservative, said of this the almost identical thing. He said basically that the facts of this case “present the potential for a disturbing loophole,” that “the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article 2 powers, that it is no longer their custodian, and that there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.”
Sargent: Has the government responded to that argument in particular at any point?
But the other thing the government is doing is responding by just attacking them and saying basically, Who are you to suggest we bring back criminals? And in Mr. Abrego Garcia’s case, it’s particularly outrageous. Here we have a guy who’s been in the U.S. since he was 16 years old for 14 years, and the only thing on his criminal record is a single arrest for loitering. He doesn’t have even a charge; he’s never been charged with anything. And yet, you have Pam Bondi, Kristi Noem, and others in the Trump administration calling him a human trafficker, accusing him of being a violent criminal; you had JD Vance calling him at one point a convicted gang member, even though he ended up having to walk that back. So to some extent, they just simply can’t admit that they made an error because once they admit they made one mistake, the whole thing unravels.
Reichlin-Melnick: No. I think it’s helpful to walk through what the actual evidence says in this case. When he was arrested in 2019, he was arrested by the Prince George’s County Police Department, which is the county right outside D.C. in Maryland, and he was arrested outside of Home Depot. He was held for about four hours. By his own declaration, he said a police detective interrogated him and asked him whether he was connected to any gangs. He said, No, no, no, no, I’ve got no connection to any gangs. Then he gets released. Four hours later, that’s it. But he gets sent immediately to ICE detention. So he goes straight from police custody to ICE detention after four hours.
Reichlin-Melnick: Because he was undocumented. Not because of a crime, simply because he was undocumented. Then when he gets to ICE detention, ICE says, Hey, we think you’re a gang member. And he goes, Wait, why? His lawyers say, Wait, hang on, he’s got no connections to gang. It turns out that while he was in Prince George’s County Police Department custody, the detective filled out a form called a gang worksheet. The gang worksheet says, I think this guy’s a member of MS-13. How does [the detective] know this? One, the detective says he was wearing Chicago Bulls gear at the time—that’s evidence he was in MS-13. And two, the detective says a confidential informant who’s unnamed said that this guy was a member of a MS-13 clique that operates out of Long Island called the “Western clique.” So Mr. Abrego Garcia says, I’ve never lived in Long Island. I’ve lived in Maryland the whole time that I’ve lived in the U.S. Obviously, I’m not connected to that. His lawyer then goes back to the police and says, Hey, we’d like all of your records about what happened here.
They have had many opportunities since then to present evidence that he’s connected to a gang. Again, this has been in front of multiple judges now. They’ve submitted declarations; they’ve made arguments to the court; they’ve claimed he’s a danger. They have nothing. They literally have never submitted any other evidence than a detective claimed that a confidential informant said he was an MS-13 member in a place he’d never lived and he was wearing Chicago Bulls gear when he was arrested. And that’s it.
Reichlin-Melnick: Well, President Bukele of El Salvador has been extremely clear that he would be happy to take American citizens. He said it when Marco Rubio was visiting the country. He has recently said it again. Trump has said he thinks it would be a good idea, but he’s unsure whether it’s legal. So the worst-case scenario is that someone inside the White House says, Hey, I don’t really care what the lawyers say, I think it’s legal, and sells a prisoner to El Salvador, telling them, Sure, you take him as part of this deal.
Sargent: Well, I think we should find Sotomayor’s warning terrifying, don’t you?
But what it is saying is that one core way to prevent such awful abuse like that is gone, and that essentially the administration could act—and as long as they were quick enough to get someone out of the country in time to avoid a court order, there’s nothing a judge could do. That should scare anybody. That doesn’t comport with any principles of due process that I can think of or that we’ve ever had in our country. And of course, if you look at the Declaration of Independence, one of the grievances against King George III is that he took people away from their homes and sent them to foreign countries to be tried on made-up charges. And man, I don’t want to be saying we’re speedrunning the Declaration of Independence.
Reichlin-Melnick: I want to start with the Alien Enemies Act first, because, to emphasize again, the Supreme Court did not rule last night that his decision was legal to invoke the law. And that is something that is going to percolate up to the Supreme Court again. It may take a lot more time now. It could not potentially be argued until next year, given where we are in the court’s schedule. Oral arguments are set to conclude at the end of April, so it’s possible we might not get a decision on that for a while. But it’s going to make it there eventually, because there is no realistic argument that we have been invaded by Tren de Aragua or the Venezuelan government, or that a gang, already on the decline after the Venezuelan government cracked down on it badly two years ago, is a foreign nation that was settled on the law.
On Mr. Abrego Garcia, we genuinely don’t know. Judge Wilkinson, the Reagan appointee who I mentioned said that this could lead to lawlessness, also said, Look, the government does have a point here to some extent. Yes, this guy is a Salvadoran man who is being held in a Salvadoran prison, and there is some argument that we couldn’t simply order them to do the impossible. But he pointed out that that’s different from ordering the government to at least make a good faith effort to try to bring him back, and at least have a judge looking over their shoulders, making sure they are actually making a good faith effort and not trying to say “the dog ate my homework” and “we tried but there’s nothing to be done.”
Sargent: Well, when you put it like that, it becomes really clear that Sotomayor laid out what the actual stakes here really are. Aaron Reichlin-Melnick, it’s always good to talk to you, man. Thanks for the clarifying conversation.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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