daezor
10mo ago
The crux of the Abrego Garcia controversy is a dispute about who "morally" counts as an American citizen.
The rallying cry of the pro-Abrego Garcia camp is: "If they can do it to him, they can do it to any of us." In other words, they see no meaningful difference between him and a legal US citizen, and so there is no Schelling Fence that can be drawn between the two. On other hand, the pro-Trump camp who wants Abrego Garcia to stay in El Salvador are not at all concerned that they will be next, because in their view citizens and non-citizens are two morally distinct categories.
The slippery slope argument (e.g. Laurence Tribe yesterday, and Justice Sotomayor's concurrence) is that if the government gets its way with Abrego Garcia, there will be no legal obstacle preventing them from treating citizens in the same way.
But the thing is, this is already the case. The US government's treatment of citizens abroad is already effectively unconstrained by the law. The government can negotiate for the release of a citizen imprisoned by another country, but nobody would argue that the government is legally obligated to do this, and it's absurd to imagine a court compelling them to do so, because that effectively makes diplomacy impossible. (The US government must be able to value the citizen's return at less than infinity, or else they lose all negotiating leverage.) On the other hand, the government can drone-strike a citizen abroad without due process, and while that may stir up political pushback here at home, there are effectively no legal repercussions.
This is because, according to the constitutional separation of powers, foreign affairs are a quintessentially "non-justiciable political question". In common parlance this means: If you don't like what the government is doing, the proper way to fix it is through advocacy and the democratic process, not through the court system.
To which the pro-Abrego Garcia camp will gesture around at the crowd of protesters they've assembled, waving "Free Abrego Garcia!" signs, and say "Great, come join us. Here's your sign!"
But of course the pro-Trump immigration hawks see no need to take it up, because even if these protests have no effect, this does not in any way diminish their confidence that if a citizen were to be treated in the same way, then the backlash would be swift, universal, and sufficient to compel the citizen's return - no court order needed. For them, it is simply obvious that the failure of the Abrego Garcia advocacy has no implications whatsoever for the success of the hypothetical advocacy on behalf of a fellow citizen, and this is no cause for cognitive dissonance because citizens and illegal-immigrant non-citizens are two entirely separate categories.
Prior to anything else in the political life of a nation, there must be near-universal agreement on who constitutes the body politic for whose benefit the government exists and to whom they are accountable. If there is factional dispute over this basic question, then morally speaking there is no nation, but multiple distinct nations that happen to find themselves all mixed up in the same land. But I'm sure this is no great surprise.
This equivocation on "due process" is a motte-and-bailey because the amount of process required to establish whether or not somebody is a citizen is far simpler than, and falls far short of, the due process (trial by jury, assistance of counsel, confrontation of witnesses, right to appeal, etc.) which is constitutionally required in criminal trials. The fact that Abrego Garcia is not a citizen (and is an illegal immigrant) has never been disputed by him or by anyone else, even though he has been through several administrative hearings (which, again, do not count as "due process" in the legal sense because of the lack of jury etc.) at which he could have presented proof of citizenship if he had it.
I will start to worry about my own safety and that of other US citizens if it comes out that the "administrative error" that led to Abrego Garcia being sent to El Salvador was one that was just as likely to have caught up an American citizen. However, that doesn't appear to be the case here. The government picked up a bunch of people from a list of deportation orders from immigration judges, not realizing that in Abrego Garcia's case the order specifically excluded El Salvador. If he were a citizen, no such order would've existed and so he would not have been deported.
Again correct me if I'm wrong (since this is not purely academic but a matter of immediate self-interest for me to know correctly one way or the other if I'm in danger of deportation) but this has the appearance of a software bug where immigrants listed this attorney's contact info as their own and so a message meant for them was instead sent to the attorney. I don't think there's any realistic chain of events by which this attorney ends up being deported because of this.
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