The following is a lightly edited transcript of the April 9 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
The fate of dozens of Venezuelans deported by the Trump administration to a maximum security prison in El Salvador remains in doubt. So does the fate of Kilmar Abrego Garcia, who administration officials admit was removed in error even as they refuse to bring him back to the United States. The Supreme Court issued rulings on these cases this week, putting a hold on a lower court’s order to reverse the removal of Abrego Garcia and allowing the deportations of Venezuelans to resume for now. In that second one, Sonia Sotomayor issued a powerful dissent—and buried in it is cause for real alarm because it signals a way in which these horrors might get much worse. Today, we’re talking about all of this to one of the best out there at demystifying this kind of thing, American Immigration Council senior fellow Aaron Reichlin-Melnick. Aaron, thanks for coming on, man.
Aaron Reichlin-Melnick: Thank you for having me.
Sargent: The Supreme Court reversed a lower court ruling that had stopped Trump’s deportations of Venezuelans, which he had undertaken pursuant to the Alien Enemies Act of 1798. Dozens of them had been removed without any due process, and the administration has failed to show that a number of them are even members of the Tren de Aragua gang, as it alleged. Now, Aaron, the court did say that all nine of the justices agree that these migrants deserve due process. The only question is which court it happens in. Can you sum up where we are on this?
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.
Sargent: So that is actually a very, very narrow win for the Trump administration and mostly somewhat good news for the plaintiffs and for people who don’t think that the administration should be able to snatch people off the streets and send them to foreign gulags?
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 and maybe, 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 is a “reasonable period of time.”
Sargent: Let’s go to the Abrego Garcia case for a second. Can you just recap where we are on that?
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—that 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.
The Trump administration admitted its error in court when sued, but then made the startling argument that even though they had, by their own admission, messed up, there was absolutely nothing a judge could do about it. They now have lost in front of every judge they’ve made that argument to. They lost at the lower court level. On Monday, the Fourth Circuit ruled that they should lose again, denied their request to put this order on hold. Now that’s up to the Supreme Court—where they’re making the exact same argument of, Even if we screw up and send someone to El Salvador who we, by our own admission, should not have sent to El Salvador, there is nothing a judge could do. And the Supreme Court is going to weigh in at any moment.
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?
Reichlin-Melnick: That’s right. And it’s also an odd argument because ICE and the Department of Justice work to bring people back who are wrongfully deported all the time. Wrongful deportations happen. Sometimes, it’s a matter of a court order going into effect 60 minutes before a plane takes off and the message doesn’t get to the right person in time. Sometimes, like this case, it’s a paperwork error or an administrative error. It’s not like this has never happened before. There are dozens of examples going back many years where courts order the government to make good-faith efforts to fix its mistakes. So the government’s position here is pretty at odds with its own long history of fixing its own mistakes.
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 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.
Then Sotomayor said the following: “The implication of the government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal.” Aaron, that’s the rub of the matter. If the administration can deport people by mistake and not have to ever rectify those mistakes, where’s the limit on that?
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 weighing 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.”
So there you have two very senior judges within less than 12 hours weighing in and saying, The government cannot be right about this because otherwise where are we with the law?
Sargent: Has the government responded to that argument in particular at any point?
Reichlin-Melnick: The government has by and large not responded to the core issues raised by these judges’ claims. They basically try to say, Well, it doesn’t matter what the broader principle is. In this specific case, these people are detained by El Salvador, and there’s nothing we can do about it because they’re detained. And the response is, judges have pointed out, You’re paying El Salvador, so obviously you do maintain some control.
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.
Sargent: Well, let’s just clarify a key point here. Even if he were an MS-13 member or even if they did have real evidence of that, he would still be entitled to due process on the latest removal of him, right? And by the way, they have not presented any real evidence that he’s a member of MS-13, have they?
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.
Sargent: Because he was undocumented, right?
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 do I know this? It says, one, he was wearing Chicago Bulls gear at the time—the detective says 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.
What they found was (1) the PG County police didn’t even have a record of his arrest and had not even filled out an incident report and (2) the detective, when they went to interview him, had been suspended for some unrelated reason. So that’s it. When ICE in immigration court presented that evidence to the immigration judge, they agreed. They had nothing else. That is literally it. There has never been any other evidence of connections to MS-13 other than that one gang worksheet filled out by that suspended detective that claimed he was part of a MS-13 clique in a place he had never lived in, and nothing else.
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.
Sargent: Just amazing. Let’s talk about Sotomayor’s line in her dissent. It seems superficially far-fetched that something like that could happen to an American citizen. On the other hand, she’s right that this is the implication of the government’s position. So, Aaron, realistically, what’s the worst scenario you could see actually happening in the real world if that position is allowed to stand?
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, and says, Sure, you take him as part of this deal.
Now, do I think that’s likely? No, I hope not. I hope there are still enough adults in the room that would stop something like that from happening. But here we have a foreign president who has openly said he would take U.S. citizens the U.S. wanted to send there—and an administration that has been very heavily flirting with the idea.
Sargent: Well, I think we should find Sotomayor’s warning terrifying, don’t you?
Reichlin-Melnick: Yeah. And this is why how the Supreme Court rules on Mr. Abrego Garcia’s case is really going to be telling. If they actually say there’s nothing the judges could do, we’re in a dangerous place. Now that is not the same as saying that people are suddenly going to be rounded up and grabbed off the street and shipped to El Salvador. I don’t think that’s the same thing.
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 speed-running the Declaration of Independence.
Sargent: Well, OK, that sounds like an extreme scenario. But as you say, it would remove a check against that extreme scenario if the court just throws up its hands and says, We cannot compel the government to reverse an “error” like this one with Abrego Garcia. Where do you expect the court to rule on the Abrego Garcia matter? And also, I got to say, it seems unlikely that the Supreme Court would uphold these deportations pursuant to the Alien Enemies Act, which requires us to be at war or under invasion by a foreign power or government. Am I being too optimistic on both of these? What’s your general expectation on each front?
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 [Trump’s] 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 that is 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.
This is a wartime law. Let’s be serious about it. We are not at war. I hope that the justices, when they finally get up to the answering that question, answer what should be an easy question: No, this is not a lawful use of 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.”
So I hope that the Supreme Court sees that distinction and says: Even with all the national security and international relations and foreign affairs arguments the government is making at its core, this isn’t a court order saying, Come hell or high water, bring the guy back. It’s a court order saying make an effort at it, and make a real effort at it. And admit that you made a mistake. You made a mistake, try to fix it. And the government is certainly not doing itself any favors here by taking such an extreme position, especially as Justice Sotomayor pointed out in her Alien Enemies Act decision.
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.
Reichlin-Melnick: Thank you so much for having me.
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.