Federal courts don't have jurisdiction over foreign prisons. That doesn't mean that they're powerless when the U.S. government wrongly removes someone from the United States.
Weren’t all the immigrants deported illegally, because they were denied due process? The kidnapping of all of them may have been “mistakes.” For the court to order the return only of this one ensures that in the future the government won’t admit its “mistakes.” Am I right?
UPDATE: DOJ has suspended the lawyer who told the court about the mistake. That may ensure that the government won't admit its mistakes, apart from its efforts to avoid having to correct them. Then, again, a lawyer who lies to a court may get into worse trouble than losing his government job. This is sick.
If Attorney General Pam Bondi thinks that the government has legitimate, good faith arguments that should have been presented by the government attorney who was suspended by her for failing to present the government's case as she thought it should have been presented, she should personally appear and make her arguments as an officer of the court. Or shut up and reinstate the attorney who was suspended.
Why is El Salvador accepting and housing US prisoners if they are not getting paid to do it? If the Trump administration is paying Bukele to accept and keep prisoners, the Trump administration surely has the power to stop paying the bill and bring them back.
This seems exactly right. The government is, in effect, arguing that they have no control over their paid agent. It's analogous to a situation in which I take your car on the false claim that I am repossessing it because you haven't made payments, and then claim that I can't return it because I've parked it in a rental garage...for which I am paying the rent.
It's transparent bulls--t. If the courts accept the government's claims here, then they don't deserve to be called courts of law.
I hope the courts will start holding DoJ officials in contempt, including sending them to jail. There's nothing like sharing the experience of someone who has been wronged to develop a sense of empathy.
I might be wrong, but for some reason the amount of $6 million sticks in my head. In other words, these folks didn't end up in El Salvador by accident.
Good point. Trump's actions on and since March 15 are particularly peculiar in light of Trump's extraordinary emphasis recently on keeping American jobs and American money in America (and Trump's mad dash to find ways (supposedly) to save money by laying off thousands of federal employees). Didn't we have prisons here that could house a few hundred more inmates?
The gov't didn't just illegally remove this guy; it deposited him into a hellhole prison that violates human rights and it's paying to keep him there. Accordingly, "not getting him back" should be entirely unacceptable to any federal judge who respects the Constitution. Accordingly, if the gov't doesn't get him back posthaste, the court should hold Noem, Bondi & Rubio in contempt and jail them all until he is returned. This needs to be taken far more seriously than it is and the courts should move with much more urgency than they already are.
This piece is a masterclass in cutting through legal obfuscation. What strikes me most is how “constructive custody” reframes responsibility—not as a matter of physical control but of legal and moral agency. The government can’t shrug off accountability for its own actions by hiding behind geography.
Kudos to Jenner & Block for filing a lawsuit to expose and oppose Trump's egregiously, blatantly and intentionally unconstitutional retaliation against Americans for exercising our First Amendment rights and freedoms (freedom of expression and freedom of association)!
Professor Vladeck, thank you for shining more of a light on the president's egregious and blatant usurpation of power.
It is not even conceivable that anybody in the 1780's (when our Constitution was written and ratified by people who feared anyone with the power to be a tyrant) trusted any president with the power to hustle people off to a foreign prison (without any hearing) merely because the mere president merely proclaimed that mere immigration constituted an enemy invasion.
Consider what actual Founders of our nation and actual Framers of our Constitution actually wrote about this very issue (to assure the people that the Constitution they were ratifying would protect us all from tyrannical government, including arbitrary imprisonment).
Alexander Hamilton in The Federalist No. 84 wrote:
"the practice of arbitrary imprisonments" has "been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A more dangerous engine of arbitrary government."
More generally, as James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” Trump's March 15 Proclamation and his immediate rush to imprison hundreds of people in a foreign prison is the very definition of tyranny.
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because" the "same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” The Framers devoted considerable effort to limiting and separating powers. That is exactly why every state and federal Constitution separates powers among three distinct co-equal branches. Again and again in the past two months, Trump has usurped the powers of legislators, judges, juries and even the sovereign people, themselves (in the First Amendment).
It's remarkable that the victim needs a court order to get the government to try to remedy its acknowledged mistake. And to respond by asserting the court has no jurisdiction over the president of el Salvador? These are bad times.
This is why every American should care about this case.
"A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next."
Let's not forget that the U.S. has a contract with El Salvador to imprison those it sends there. It cannot simply wash its hands of its actions with respect to those prisoners.
The incompetence and missteps of Trump's administration so far are breathtaking. And, Noem's photo op in front of the prisoners was also breathtaking in its callousness.
“A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next. …[T]hat possibility should terrify all of us—and, hopefully, the Fourth Circuit and the Supreme Court as well—and push courts to provide whatever relief is possible under the circumstances, as Judge Xinis attempted to in yesterday’s ruling.”
Couldn’t Trump exert the economic pressure over Bukele that he is seemingly exerting over virtually everyone else in the world (except Russia, Belarus…) by stopping payment for all of the U. S. prisoners’ detentions until Abrego Garcia is released?
If I recall correctly, Prof. Vladeck noted in an earlier post that the EO invoking the Alien Enemies act was "secretly signed." We all know how much Trump delights in putting pen to paper and then displaying the signed EOs for all to see. So the fact that he did not employ his usual modus operandi in this case suggests that the administration was hell-bent on getting those 3 plane-loads of 'vermin' out of the country before anyone could object.
If I recall correctly (and I may not be) wasn't the REASON Abrego Garcia had permission to stay here was that he is in danger from the government of--El Salvador. I can see that now they have their hooks in him, they might not let him go. They could even kill him on "their own grounds."
Would his family have a claim under the FTCA for negligent homicide, in that case?
Weren’t all the immigrants deported illegally, because they were denied due process? The kidnapping of all of them may have been “mistakes.” For the court to order the return only of this one ensures that in the future the government won’t admit its “mistakes.” Am I right?
UPDATE: DOJ has suspended the lawyer who told the court about the mistake. That may ensure that the government won't admit its mistakes, apart from its efforts to avoid having to correct them. Then, again, a lawyer who lies to a court may get into worse trouble than losing his government job. This is sick.
If Attorney General Pam Bondi thinks that the government has legitimate, good faith arguments that should have been presented by the government attorney who was suspended by her for failing to present the government's case as she thought it should have been presented, she should personally appear and make her arguments as an officer of the court. Or shut up and reinstate the attorney who was suspended.
She has no sense of jurisprudence; just another plastic looking version of those kowtowing to the King...the Emperor has no clothes!
Why is El Salvador accepting and housing US prisoners if they are not getting paid to do it? If the Trump administration is paying Bukele to accept and keep prisoners, the Trump administration surely has the power to stop paying the bill and bring them back.
This seems exactly right. The government is, in effect, arguing that they have no control over their paid agent. It's analogous to a situation in which I take your car on the false claim that I am repossessing it because you haven't made payments, and then claim that I can't return it because I've parked it in a rental garage...for which I am paying the rent.
It's transparent bulls--t. If the courts accept the government's claims here, then they don't deserve to be called courts of law.
I hope the courts will start holding DoJ officials in contempt, including sending them to jail. There's nothing like sharing the experience of someone who has been wronged to develop a sense of empathy.
I might be wrong, but for some reason the amount of $6 million sticks in my head. In other words, these folks didn't end up in El Salvador by accident.
Good point. Trump's actions on and since March 15 are particularly peculiar in light of Trump's extraordinary emphasis recently on keeping American jobs and American money in America (and Trump's mad dash to find ways (supposedly) to save money by laying off thousands of federal employees). Didn't we have prisons here that could house a few hundred more inmates?
Oh idk Trump could threaten them with 400% tariffs for not sending back all of them because isn’t he the most powerful dictator in the world?
The gov't didn't just illegally remove this guy; it deposited him into a hellhole prison that violates human rights and it's paying to keep him there. Accordingly, "not getting him back" should be entirely unacceptable to any federal judge who respects the Constitution. Accordingly, if the gov't doesn't get him back posthaste, the court should hold Noem, Bondi & Rubio in contempt and jail them all until he is returned. This needs to be taken far more seriously than it is and the courts should move with much more urgency than they already are.
This piece is a masterclass in cutting through legal obfuscation. What strikes me most is how “constructive custody” reframes responsibility—not as a matter of physical control but of legal and moral agency. The government can’t shrug off accountability for its own actions by hiding behind geography.
Kudos to Jenner & Block for filing a lawsuit to expose and oppose Trump's egregiously, blatantly and intentionally unconstitutional retaliation against Americans for exercising our First Amendment rights and freedoms (freedom of expression and freedom of association)!
Professor Vladeck, thank you for shining more of a light on the president's egregious and blatant usurpation of power.
It is not even conceivable that anybody in the 1780's (when our Constitution was written and ratified by people who feared anyone with the power to be a tyrant) trusted any president with the power to hustle people off to a foreign prison (without any hearing) merely because the mere president merely proclaimed that mere immigration constituted an enemy invasion.
Consider what actual Founders of our nation and actual Framers of our Constitution actually wrote about this very issue (to assure the people that the Constitution they were ratifying would protect us all from tyrannical government, including arbitrary imprisonment).
Alexander Hamilton in The Federalist No. 84 wrote:
"the practice of arbitrary imprisonments" has "been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A more dangerous engine of arbitrary government."
More generally, as James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” Trump's March 15 Proclamation and his immediate rush to imprison hundreds of people in a foreign prison is the very definition of tyranny.
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because" the "same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” The Framers devoted considerable effort to limiting and separating powers. That is exactly why every state and federal Constitution separates powers among three distinct co-equal branches. Again and again in the past two months, Trump has usurped the powers of legislators, judges, juries and even the sovereign people, themselves (in the First Amendment).
It's remarkable that the victim needs a court order to get the government to try to remedy its acknowledged mistake. And to respond by asserting the court has no jurisdiction over the president of el Salvador? These are bad times.
Saying they can’t do anything is a lie. Oh wait, that’s what they always do. Thank you for this information!
THIS!
This is why every American should care about this case.
"A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next."
Let's not forget that the U.S. has a contract with El Salvador to imprison those it sends there. It cannot simply wash its hands of its actions with respect to those prisoners.
The incompetence and missteps of Trump's administration so far are breathtaking. And, Noem's photo op in front of the prisoners was also breathtaking in its callousness.
“A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next. …[T]hat possibility should terrify all of us—and, hopefully, the Fourth Circuit and the Supreme Court as well—and push courts to provide whatever relief is possible under the circumstances, as Judge Xinis attempted to in yesterday’s ruling.”
I am terrified.
Couldn’t Trump exert the economic pressure over Bukele that he is seemingly exerting over virtually everyone else in the world (except Russia, Belarus…) by stopping payment for all of the U. S. prisoners’ detentions until Abrego Garcia is released?
If I recall correctly, Prof. Vladeck noted in an earlier post that the EO invoking the Alien Enemies act was "secretly signed." We all know how much Trump delights in putting pen to paper and then displaying the signed EOs for all to see. So the fact that he did not employ his usual modus operandi in this case suggests that the administration was hell-bent on getting those 3 plane-loads of 'vermin' out of the country before anyone could object.
If I recall correctly (and I may not be) wasn't the REASON Abrego Garcia had permission to stay here was that he is in danger from the government of--El Salvador. I can see that now they have their hooks in him, they might not let him go. They could even kill him on "their own grounds."
Would his family have a claim under the FTCA for negligent homicide, in that case?