When Presidential Claims Collide with the Court, Due Process, and the Rule of Law
April 17, 2025
Last week, the U.S. Supreme Court instructed the Trump Administration to “facilitate” the return of Kilmar Abrego Garcia from an infamous torture prison in El Salvador, to which he was illegally deported without any semblance of due process of law. Citing an “administrative error,” the Administration acknowledged that this deportation of a Maryland man, who has never been charged with a crime, had been a mistake. Yet, Trump officials have made no effort to facilitate Garcia’s return to the United States, and to his wife and child.
On April 16, U. S. District Judge Paula Xinis, the presiding judge whose ruling that the Administration has an obligation to facilitate Garcia’s return was unanimously affirmed by the Supreme Court, ordered Trump officials to produce records and sworn answers about the efforts, or lack thereof, to return Garcia, or face a contempt ruling. For readers whose busy lives have precluded attention to this growing standoff between the executive and the judiciary, here’s why it is important for you to pay attention. President Donald Trump informed the Salvadoran President, Nayib Bukele, in an exchange posted on Bukele’s X feed, that “Homegrowns are next. The homegrowns. You gotta build about five more places.”
Trump’s threat to deport “homegrowns,” those whom he sometimes refers to as the “worst of the worse,” includes all Americans, citizens from coast-to-coast. In the Supreme Court’s unanimous ruling last week, Justice Sonia Sotomayor penned a statement, joined by Justices Ketanji Brown Jackson and Elena Kagan, that warned of Trump’s claim of unlimited authority: “The Government’s argument, moreover, implies that that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.”
The Administration had argued that the courts could not intervene in the President’s conduct of foreign policy, an overly broad contention that flies in the face of two centuries of Supreme Court rulings that declare boundaries on the scope of executive power in foreign relations. The most alarming assertion advanced by the Trump Administration is its authority to dispatch armed officials to grab people from the streets and ship them off to a prison in another country – without a shred of due process. The threat of deportation and incarceration, “before a court can intervene,” is a reference to executive contempt for due process and the rule of law.
Indeed, the Court’s prescription for the return of Garcia, which embraced the core of Judge Xinix’s ruling, trumpeted the obligation to adhere to due process: “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Adherence to due process of law is the foundational principle of American jurisprudence, without which the premise and promise of the rule of law and American Constitutionalism, itself, vanish. Due process emerges from the mists of antiquity in Magna Carta, signed by King John at Runnymeade 1,100 years ago, on June 15, 1215. America’s founders believed with Sir Edward Coke, the parliamentarian and champion of the rule of law whom they idolized, that Magna Carta has no peer – “no sovereign” – for it was incontestable that its proclamation in Chapter 39 that the “law of the land,” a majestic phrase that soon after its appearance was popularized as “due process of law,” represented the bone marrow of the agreement between the barons and the King John at Runnymeade. What the “law of the land” meant to the barons was that the king could no longer take the law into his own hands: the deliberate judgment of a competent court of law must precede any punitive measures. In modern terms, the barons demanded that they could not be imprisoned, except after a trial.
The barons’ conclusion that, in England, the king’s will had become law, was an intolerable condition. They sought legal curtailment of the king’s royal powers and protection for their individual rights. The treaty signed at Runnymeade eased the development of legal and political institutions in England and influenced America’s founders in their creation of the rule of law, separation of powers, and rights and liberties.
As John Adams wrote, the recurrence to fundamental principles is crucial to the protection of our liberties.
-David Adler