Kilmar Abrego García Case Shows Constitutional Crisis Is Here
Lately I’ve been wondering where the tipping point is: how long can pundits brandish phrases like “threat to democracy,” or debate whether the United States is in a “constitutional crisis,” before the perpetual asking of that question itself reveals the answer? If Donald Trump and his allies are whittling away at democracy’s very core, will there be a moment of mainstream consensus — when we can look at the remaining form and say, yes, this no longer resembles what we had before?
The case of Kilmar Abrego García might be that threshold. The Trump administration admits that the Maryland father, originally from El Salvador, was deported accidentally to that country’s infamous maximum-security prison, known as the “Terrorism Confinement Center,” or CECOT. The Supreme Court has now upheld a lower court’s order instructing the administration to “facilitate” Abrego García’s return. And yet Trump has thumbed his nose at the judiciary, going so far as to stage a publicized Oval Office meeting on April 14 with El Salvador’s self-described dictator Nayib Bukele, in which both leaders told reporters that they had no power over Abrego García’s release.
Two days later, a federal judge found probable cause to hold Trump officials in criminal contempt of court orders in a different case. Judge James Boasberg said the administration had engaged in “willful disobedience of judicial orders” to halt the deportation flights of more than 200 migrants, mostly Venezuelans sent to CECOT. The administration has invoked the Alien Enemies Act in its justification to deport the men, alleging, with scant evidence, that they were involved in the Tren de Aragua or MS-13 gangs.
I spoke to a legal scholar and a historian of fascism who both said that the Trump administration’s acts of judicial defiance and clear disregard for due process carry grave stakes for civil liberties and U.S. democracy.
“I think U.S. liberal democracy is under attack. As much as a government can engage in this kind of assault, there’s no question: nothing like this has happened in U.S. history,” said John Connelly, a professor at UC Berkeley and an expert in the political history of eastern and central Europe. “I think there are efforts to undo its substance by attempting to reduce the courts in particular — to close their ability to operate how they’re supposed to operate, which is to act as a check on power, especially executive power.”
James Sample, a law professor at Hofstra University specializing in constitutional law and democracy, said the U.S. is already in a constitutional crisis. “The one scenario for which our constitutional framework is simply not equipped is the scenario where a powerful executive simply ignores rulings of the courts,” he told me. “The republic is in intensive care at the moment, and it’s not clear that it will come out of it in the same condition.”
The Trump administration’s legal argument in the Abrego García case rests on the difference between two words: “facilitate” and “effectuate.” Maryland District Court Judge Paula Xinis had ordered the administration to do both, setting forth a strict timeline for when Abrego García should be returned to the U.S. and afforded due process. The Supreme Court clarified in its opinion that Xinis could not order the president to “effectuate” Abrego García’s return because legal precedent discourages the judiciary from directly intervening in the executive branch’s foreign affairs. Even so, the theatrics of this week’s Oval Office moment are patently ridiculous. Trump is one of the most powerful leaders in the world, and the U.S. is paying El Salvador $6 million to imprison Abrego García alongside the deported Venezuelans and other migrants. Sample noted that “facilitate” still means that Trump must make a good-faith attempt to get Abrego García back — simply throwing up his hands and saying “oops” sure looks like a failure to comply with court orders.
“By any reasonable definition of facilitate, including its use elsewhere in immigration law and extradition contexts, what the administration has done so far doesn’t qualify,” said Sample. “We haven’t even seen an indication that the president or secretary of state has asked for García’s return. That seems like the most basic step. Instead, we got this Oval Office circus, this shell game, where the presidents of both countries are seated three feet apart, and each claims it’s the other’s responsibility.”
“We got this Oval Office circus, this shell game, where the presidents of both countries are seated three feet apart, and each claims it’s the other’s responsibility.”
At that meeting, Trump officials repeatedly stated that Abrego García was a member of the violent international MS-13 gang and therefore deserved to be sent to CECOT. “In 2019, two courts — an immigration court and an appellate immigration court — ruled that he was a member of MS-13,” Attorney General Pam Bondi told reporters. “It’s up to El Salvador whether they want to return him. That’s not up to us.”
But Bondi’s statement would fail even Constitutional Law 101, Sample said. That’s because Abrego García has not been convicted of or even charged with any crime. Police officers in Prince George’s County, Maryland, arrested Abrego García in 2019 because he was undocumented and they suspected he was a member of MS-13. A police report cited Abrego García’s Chicago Bulls hat and hoodie as support for his gang affiliation and stated that a confidential informant had claimed he was a member of the “Westerns” clique of MS-13 in Long Island, New York — a place Abrego García has never lived. The informant testimony was sufficient for an immigration court to deny Abrego García bond, which an appellate court affirmed, but this is not the same thing as a court finding him guilty of criminal gang membership. The only way for that to happen is if Abrego García is charged with a crime and afforded due process — neither of which have happened.
“It’s a scary time when the president of the United States, who is not a lawyer, is surrounded by lawyers, including the attorney general and other surrogates, who repeat false claims that wouldn’t pass even the ‘Schoolhouse Rock’ version of law school,” said Sample. “The fact that the attorney general is defining the executive branch as the final arbiter of criminality should send chills down the spine of every American and every person in America.”
“The fact that the attorney general is defining the executive branch as the final arbiter of criminality should send chills down the spine of every American and every person in America.”
Conservatives — including Vice President J.D. Vance — have argued that the U.S. government should not be obligated to honor due process for undocumented immigrants. But legal experts have pointed to the neglect of due process in Abrego García’s case as a threat to everybody in the U.S., including citizens. “The Government’s argument,” Supreme Court Justice Sonia Sotomayor wrote in a statement accompanying the ruling, “implies 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.” Trump himself has clearly stated he aims to expand his deportation regime, telling Bukele during the Oval Office meeting that “the homegrowns are next” and instructing the dictator to build “about five more” prisons to meet the demand.
Sample put it this way: “We are all Kilmar Abrego García.” He explained, “If you take away due process, there’s nothing preventing the exact same treatment from being applied to U.S. citizens. A citizen’s only defense, in such a case, would be: ‘I’m a U.S. citizen — I’m entitled to due process.’ But if there’s no process, there’s no arena to make that argument. Depriving due process is the domino that causes the rest of the legal system to fall.”
I asked Connelly what we can learn from looking at historical examples in which other legal systems have fallen. He noted that, while he doesn’t believe in drawing direct parallels, he can see echoes of post-1933 Germany in our current U.S. political moment.
For instance, in Germany, “the government achieved cooperation from the Reichstag to rule by decree, which included disabling the courts.” The Nazis, Connelly said, “didn’t disable the Weimar Constitution; they exploited its weaknesses to create a total state.” But the German legal system was “far more centralized than ours, and there was very little opposition from German elites at the time,” which helped facilitate the Nazis’ fascist takeover.
“Here’s where I hope we’ll see a difference in our own case: the legal profession in Germany cooperated wholeheartedly. Generally speaking, lawyers and judges supported the regime,” said Connelly. “It remains to be seen what will happen in our country if the federal government attempts to do illegal things — whether the courts and the states will push back. We’re still in the early days. We haven’t had a real showdown yet.”
On the other side of the same coin, Sample noted that his biggest concern right now is Trump’s complicit Congress and the conservative supermajority on the Supreme Court. “If this Court is our best hope for protecting the republic, it’s hard not to be pessimistic,” he said, pointing to the court’s ruling last year that granted Trump sweeping immunity from criminal prosecution.
But Connelly emphasized that learning from history can help us chart a way forward. He pointed to the trend of “anticipatory compliance” in totalitarian regimes, where people comply with a regime’s demands before they’re even made, declining to speak out for fear of potential repercussions. “But it’s vital to remain vigilant and act as though we are in a free society,” said Connelly. “If we stop acting freely, we become complicit in reducing our freedom. Resistance is key to stopping civil liberties from being restricted.”
“You can’t appease a bully. You have to show that you’re not afraid and develop firm opposition,” he continued. “In the 1930s, the German elite thought they could appease Hitler and use him. That was obviously incorrect.”