Updated April 15, 2025 at 13:45 PM ET
The ongoing legal saga of a wrongly deported immigrant from El Salvador creates a situation where President Trump can deny due process to anyone — not just immigrants living in the U.S. without legal status — if he removes them from the country, warns a constitutional scholar.
The case is now "about whether [Trump] feels like giving someone their rights or shipping them to a foreign country," University of Baltimore School of Law professor Kim Wehle told Morning Edition.
Kilmar Abrego Garcia, a Salvadoran immigrant who was granted protection from deportation by a judge in 2019, was arrested and deported in March. He entered the U.S. without status and lived in Maryland for almost 15 years. Abrego Garcia had no criminal record, and the Trump administration admitted his removal was due to an "administrative error."
He is being held in El Salvador's mega prison, used to imprison people accused of being gang members. Advocates have accused authorities in El Salvador of human rights violations at the prison.
The Supreme Court ruled late last week that the Trump administration should "facilitate" Abrego Garcia's return, but did not order officials to bring him back. It also said courts should defer foreign powers to the Executive Branch.
Wehle broke down why the Trump administration is in no rush to bring Abrego Garcia back to the U.S. and the risk she believes this legal reasoning poses for U.S. citizens.
The Supreme Court didn't order Trump to ensure Abrego Garcia's return to the U.S.
In its ruling, the Supreme Court sided with a lower court judge who ordered the Trump administration to return Abrego Garcia to the U.S., but Wehle said the Supreme Court drew a distinction between "facilitating" and "effectuating."
"So I think Trump took the bait and said, 'Listen, I'm trying, but I don't have to. The court didn't direct that. I do that, and I can cite you my power over foreign affairs, and there's nothing anybody can do about it' " Wehle said.
On Monday, Secretary of State Marco Rubio told reporters at an Oval Office meeting with El Salvador's President Nayib Bukele that courts have no right to conduct foreign policy. Bukele said that it would be "preposterous" to suggest he would return Abrego Garcia to the United States.
Foreign powers are implied in the Constitution. Due process is guaranteed.
Wehle wrote a column recently in which she argued that the Supreme Court made a big constitutional leap in its ruling by suggesting the president doesn't have to return Abrego Garcia as long as it cites foreign policy.
"The fact that the president has foreign affairs authority implied in the Constitution doesn't supersede that core foundational constitutional right that's guaranteed in the plain language of the Constitution," Wehle said.
Everyone in the U.S., including those without legal status, have constitutional rights to due process under the Fifth and Fourteenth Amendments, Wehle said.
"It dates back to the Magna Carta in England in 1215. And the idea is that you get notice of an offense and an opportunity to be heard before the government can take your liberty away," Wehle added.
"So imagine this is your brother and he gets picked up off the street by the cops. The first question he's going to say is, 'what did I do wrong?' And they don't answer," Wehle said. "And the second question he's going to say is, 'I want to say my side of the story here. I shouldn't be put in prison.' And that basic constitutional guarantee was admittedly deprived here."
Why Abrego Garcia's case should concern U.S. citizens
Wehle said the Trump administration could apply the principle of removing someone from the country — including citizens — potentially depriving them of the right to due process, a constitutional right present at the founding of the country.
"The framers, the revolutionaries rejected an unlimited monarchy where the power came from God," Wehle said. "And people had to just hope that the next king … was benevolent and not malevolent, because essentially your rights depended on being in good graces with the king."
Kristian Monroe edited this digital story.
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