What is stopping Trump from exiling you to a foreign prison?

WASHINGTON — With cameras rolling in the Oval Office, President Donald Trump told reporters this week that he would carefully study the law before deciding whether to exile Americans accused of violent crimes to prisons overseas, where, according to his administration, U.S. courts are powerless to respond.

Yet before the press arrived, Trump shared a different, less equivocal message with El Salvador’s dictatorial president, Nayib Bukele, who has already built sprawling maximum security complexes in service of Trump’s plan to deport noncitizens out of legal reach.

“Homegrowns are next,” Trump told Bukele, using a euphemism for U.S. citizens, captured on a livestream from Bukele’s office. “You’ve got to build about five more places. It’s not big enough.”

The legal world has been on notice for a constitutional clash ever since Trump resumed office in January, meticulously analyzing a series of court rulings that challenge the White House and following the administration’s reluctant, often defiant, response.

But constitutional scholars see no ambiguity in the consequences of the president’s latest threat. Trump’s plans to forcibly remove U.S. citizens abroad — under any circumstances — is the bright red line they have been waiting for.

‘Zero legal authority’

The question scholars are asking themselves isn’t whether Trump’s proposal is legal: Case law dating back to the 1950s makes clear it is not. They are questioning whether anything can stop Trump from a policy that endangers fundamental American freedoms.

“The courts have made it clear that the president can’t ship people abroad and deny them liberty without due process of law, and then claim that he is powerless to effectuate their return, rendering the courts powerless to stop such illegal conduct,” said Harold Koh, former legal adviser of the State Department and former dean of Yale Law School, where he is now a professor.

“Nothing in the Constitution empowers the president to be Extraterritorial-Warden-in-Chief,” Koh continued. “He can’t secretly skirt the law enforcement process by shipping prisoners abroad without following carefully negotiated extradition treaties. The courts have jurisdiction over foreign affairs, and, as important, they have jurisdiction over him and his subordinates, who are in Washington, D.C.”

The arrest and frenzied deportation of lawful permanent residents and other noncitizens, often without the opportunity of a court hearing, has set off alarms in the legal community that the administration is willing to deny individuals due process — the basic right of any person in the United States, citizen or otherwise, to have a court, not a president, determine their liberty.

But if the Trump administration is willing to deny due process to noncitizens — against direct court orders to reverse course — what is preventing it from doing the same to U.S. citizens?

And what is stopping Trump from expanding his criteria for such treatment, beyond those accused of violent crime to other activities deemed offensive to the president?

“There’s no legal mechanism — none — for ‘deporting’ citizens,” said Stephen Vladeck, a prominent Supreme Court scholar and professor at Georgetown University Law Center. “If he’s talking about sending citizens to serve prison sentences for crimes in a foreign prison, that’s something else entirely — for which there is precisely zero legal authority.”

‘More primitive than torture’

Even when granted due process, punishing a U.S. citizen found guilty of a crime with removal from the country is unconstitutional, according to a Supreme Court ruling, Trop v. Dulles, from 1958.

That ruling found that stripping an American of their citizenship, or denying that citizen entry into their homeland, is barred by the Eighth Amendment and would amount to “a form of punishment more primitive than torture.”

Noncitizens, too, have the right to due process in an American court when in U.S. custody — even if they are being held overseas. Ruling against the Bush administration over the detention of a foreign national at Guantanamo Bay in 2008, the Supreme Court found that the inmate had the right to challenge his detention before a U.S. judge, known as a writ of habeas corpus.

“The Nation’s basic charter cannot be contracted away,” the court ruled. “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’”

Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA School of Law, said the right of an American to remain in their country is “perhaps the only truly unconditional constitutional right.”

“Our government can do many things to us, including imprisoning us and even killing us in some states, but there are no conditions under which it can force a citizen to leave the country,” Arulanantham said.

Jamal Greene, a professor at Columbia Law School, said there is “no constitutional or statutory authority for the president to expatriate U.S. citizens.”

“It would be an unconstitutional abuse of power and would violate the most fundamental privilege of citizenship, namely the right to remain in the country,” Greene said.

‘The constitutional crisis is here’

Precipitating the crisis was the Trump administration’s deportation of a man with legal status in the United States from El Salvador, Kilmar Abrego Garcia, back to the country, after a court had ruled against doing so over fears for his safety.

The Trump administration initially said that Abrego Garcia’s deportation was the result of a clerical error. But after the Supreme Court unanimously ruled the administration must work to “facilitate” his return, the White House burrowed down, stating it was powerless to bring Abrego Garcia back without El Salvador’s consent. Regardless, returning him would be futile, said the president’s aides, as his ultimate fate would be imprisonment, in the United States or elsewhere.

David Strauss, a law professor at the University of Chicago who frequently argues before the Supreme Court and is the author of “The Living Constitution,” said the administration had created a false legal construct in arguing that courts cannot tell El Salvador, a foreign government, what to do with its nationals. Trump never asked Bukele to facilitate Abrego Garcia’s return during their meeting Monday.

“This isn’t a matter of U.S. courts telling foreign governments what to do. The U.S. courts would tell U.S. officials what to do,” Strauss said. “If a U.S. official has control over whether the U.S. citizen is held in a foreign prison, a court can tell that U.S. official to get the citizen returned to the U.S.”

In a lengthy video posted to social media Tuesday, Sen. Adam Schiff, D-Calif., said the administration’s disregard of a Supreme Court order had created an emergency.

“The constitutional crisis is here,” Schiff said, “because the administration is under a court order to return this wrongfully deported man to the United States — to facilitate his return. And far from taking any step to facilitate his return, in that meeting in the White House, Donald Trump essentially told the Supreme Court to pound sand.”

What can the Supreme Court do?

Abrego Garcia’s case is likely to return to the Supreme Court, with a U.S. district judge, Paula Xinis, telling the Justice Department this week that the administration had done “nothing” to work toward his return.

Whether the Supreme Court speaks more definitively in its next ruling on the matter remains to be seen. But such an order would provide the basis for the standoff that lawmakers, legal scholars and the public have been bracing for.

In a separate case, U.S. District Judge James Boasberg ruled Wednesday that “probably cause exists” to find Trump administration officials are in criminal contempt over their refusal to follow his orders. Boasberg had directed the administration to halt deportation flights of Venezuelan nationals under the Alien Enemies Act.

Robert Weisberg, a professor at Stanford Law School, noted that the Supreme Court does have tools at its disposal to enforce its rulings, such as the issuance of injunctions on administrative actions and the deployment of U.S. Marshals. But that law enforcement agency, established in principle to enforce judicial decisions, is housed under a U.S. attorney general appointed by the president.

Norm Eisen, co-founder of the States United Democracy Center and counsel for the House Judiciary Committee during Trump’s first impeachment trial, said that multiple mechanisms are still in place to enforce court rulings.

“If there is that defiance of a final Supreme Court order, the courts as a whole have the power to take enforce actions, and that can range from sanctions deciding issues in a case, civil contempt, criminal contempt — the full toolkit,” Eisen said.

“Certainly, Trump’s constitutional contempt is ratcheting up,” he said. But “there’s a reason Trump keeps saying he won’t defy court orders — because he knows that defiance will bring very bad consequences down on him.”