Kilmar Abrego Garcia: The First Legal Test

The much-anticipated constitutional crisis is no longer theoretical or incoming; it is here. This crisis, spurred by an erosion of checks and balances, is marked by an administration that is defiant of court orders and employs measures reminiscent of draconian ones. Nonetheless, this feared era of the American judiciary is rooted in the courts' increasing inability to enforce their decisions against a Trump administration that has shown little regard for the courts and their authority. Namely, the wrongful deportation of Kilmar Abrego Garcia, a Salvadoran national who has subsequently been imprisoned in El Salvador, exemplifies this present ignorance. As a result of these draconian-like measures in the US, Abrego Garcia and others demonstrate the urgency of dealing with questions of executive overreach, violating due process, and respecting human rights.

In 2012, at 16 years old, Abrego Garcia entered the United States without authorization and eventually settled in Maryland, where he remained until his deportation. While living there with his wife, a United States Citizen, Kilmar Abrego Garcia worked as a sheet metal apprentice and cared for three children with special needs. However, before his life in the United States, Abrego Garcia received death threats coupled with extortion from the Salvadoran street gang, Barrio 18. Subsequently, when looking for work in 2019, he was arrested outside a Home Depot for loitering. From this arrest, local authorities concluded that Abrego Garcia was a gang member despite having no previous criminal record. Authorities made this false inference based on Abrego Garcia’s attire, a Chicago Bulls hat, and a hoodie depicting rolls of money covering the eyes, ears, and mouth of the president, along with a confidential informant who believed Abrego Garcia was an MS-13 member. He then underwent deportation proceedings, during which he applied for asylum and requested withholding of removal. He was granted withholding of removal after the judge concluded that Abrego Garcia’s fear of prosecution was valid if he were to return to El Salvador. Subsequently, he received a work permit, as previously mentioned, and was in an apprenticeship. Nonetheless, Abrego Garcia was pulled over in mid-March by Immigration and Customs Enforcement (ICE) and told that his immigration status had changed, despite the precautions he had taken to guarantee his security. Three days later, Abrego Garcia was sent to El Salvador, where he remains today.

U.S. Immigration law holds that those who demonstrate a strong probability of prosecution if returned to their home country are eligible for withholding of removal as stipulated in the Immigration and Nationality Act (INA) § 241(b)(3).[1] The government was and is obligated to follow through with this protection, especially in the case of Abrego Garcia, who has a credible fear of being harmed once returned to El Salvador. The protection under the Immigration and Nationality Act is mandatory. In Abrego Garcia’s case, an immigration judge granted him withholding of removal after it was proven that he faced a valid fear of prosecution by street gangs in El Salvador. This order by the judge was binding and should have kept him safe from deportation. Despite this, the Trump Administration actively defied Abrego Garcia’s withholding of removal and his right to due process. This defiance by the administration demonstrates a disregard for judicial authority. Courts are not an advisory body: their rulings are enforced by law. When the President openly oversteps those rulings, the foundational idea of the judiciary as an equal branch is damaged. This defiance creates the message that the courts do not define the rule of law. This precedent weakens trust in the judicial system. If this persists, the judiciary becomes merely symbolic. Immigration officials acted with knowledge of Abrego Garcia’s protection under immigration law statutes and conducted this unlawful deportation. ICE decided to prioritize the executive branch over the other branches of government. The Trump administration later admitted that the deportation of Abrego Garcia occurred due to an “administrative error.”[2] Despite this, there have been no efforts made to return Abrego Garcia to his family. This comes after the Supreme Court unanimously ruled that the administration must facilitate the return of Abrego Garcia.[3] Refusing to comply with the highest court in the country reflects an escalation in judicial defiance not seen since the time of Andrew Jackson. It is not merely about an error. The administration has moved from denial to obstruction. The Trump administration is setting a dangerous precedent that the enforcement of the law is subject to the executive's political interests. The obstruction deployed by Trump is chipping away at the separation of powers that have served as the foundation of American democracy. This refusal to correct mistakes is telling that compliance with the judiciary is optional rather than bound to it by the constitution.[4] This draws parallels with authoritarian governments where the rule of law is no longer present.[5]

The Trump Administration has also invoked the Alien Enemies Act of 1798 to justify conducting deportations without granting due process.[6] This statute has only been invoked during times of declared war to detain and remove nationals of enemy states[7]. To use this statue in the context of deportations, like Abrego Garcia’s, presents a troubling expansion of this statue. Scholars in the legal field argue that applying this statute in the current context for deportations is not the original intent of the Alien Enemies Act. Using it under the present context, and is attempting to bypass the right to a fair hearing during immigration procedures.[8] The administration is revoking due process by classifying immigrants as threats to the state without evidence to justify this move. This undermines established immigration law as well as the right to due process for all people in the United States.

Aziz Tuq, a law professor at the University of Chicago, cautioned, “this is moving us into a completely different kind of constitutional order, one that’s no longer characterized by laws that bind officials and that can be enforced…the law, in other words, becomes a tool to harm enemies, but not to bind those who govern.”[9]

Thus, when the Trump administration decided to deport Venezuelan migrants despite a federal judge’s order to halt the removals,[10] they demonstrated a complete disregard for judicial authority. More specifically, the justification given by the Trump administration cited that once the plane had taken off, the judge’s order was no longer applicable. However, no preventive measures were taken or enforced prior to that plane's departure from the United States. The move has been widely criticized by legal scholars, who view it as a selective interpretation of judicial authority that cannot be determined based on technicalities. This disregard is telling of a deepening constitutional crisis where immigration law is completely in the hands of the President, with no room for judicial correction.

Similarly, due process, a constitutional guarantee that provides fair procedures to all citizens, is under attack in the United States. Thus, the treatment of Abrego Garcia and others shows an alarmingly comfortable administration in circumventing constitutional guarantees. The courts and their orders become null if their decisions become unenforceable. If the government can remove individuals without a hearing or trial, then the constitutional right to due process becomes null and void. This is not solely an immigration issue but a precedent that could destabilize our institutions.

Kilmar Abrego Garcia and others alike, or not isolated attacks, but part of a test on the strength of our institutions, we hold sacred. It is a test of judicial authority and the application of constitutional rights. The dramatic shift of the executive to not comply with the judiciary and their orders points to a government not run by law, but by a singular man —the executive. This moment is not a headline or distraction; it is part of a broader crisis that demands a fight. Due process, a guarantee we have taken for granted, is under scrutiny by an administration that holds little regard for the Constitution. When compliance is optional, our constitution can no longer provide us with protection. Abrego Garcia’s wrongful deportation is the first of many tests, and it demands urgency. The legitimacy of our institutions is under threat, and upholding the law, constitutional or not, demands courage and accountability. We must be up to the moment. If this passes without correction, the democracy we have worked to create will erode.

[1] Immigration and Nationality Act § 241(b)(3), 8 U.S.C. § 1231(b)(3)

[2] Politico, "Trump administration concedes mistake in deporting Salvadoran man" (2025)

[3] Reuters, "Major cases involving Trump before the US Supreme Court" (2025)

[4] Supreme Court of the United States, Department of Homeland Security v. Abrego Garcia, No. 24-1031 (2025)

[5] Laurence Tribe, “Executive Defiance and the Rule of Law,” Harvard Law Review Forum 137 (2025): 89–102

[6]American Civil Liberties Union, “J.G.G. v. Trump: Challenging Unlawful Use of Alien Enemies Act to Deport Immigrants Without Due Process,” ACLU of the District of Columbia (2025)

[7] NationofChange, "Trump defies court order, deports hundreds under 1798 wartime law" (2025)

[8] Julia Preston, “Trump Officials Defy Court Order on Migrant Deportations,” New York Times (2025)

[9] Luke Broadwater, Albert Sun, and Annie Correal, “A Judge Ordered Deportation Planes to Turn Around. The White House Didn't Listen,” The New York Times (2025)

[10] Axios, "How Trump's White House defied a judge's order halting deportations," (2025)