Do the El Salvador deportations leave due process in the dust?

Article II of the United States Constitution provides the President and the Executive Branch with broad powers in the arena of foreign relations. However, the Fifth Amendment of the United States Constitution provides that persons cannot be deprived of liberty without due process of law and due process of law has been interpreted by the United States Supreme Court to require a hearing at which an accused person is given the opportunity to present evidence as to why the deprivation of liberty is improper.

The constitutional provisions pertaining to the Executive Branch's foreign relations power and the constitutional provisions relating to the due process required to deprive accused persons of their liberty do not exist in a hierarchical relation with one provision given precedence over another provision. Rather, the foreign relations and due process provisions of the United States Constitution exist side-by-side.

It is this side-by-side relationship between the foreign relations and due process provisions of the United States Constitution that lies at the heart of the legal controversies over the Trump Administration's deportation of persons to an El Salvadoran prison without first providing such persons with a hearing to present evidence as to whether such deportation is proper.

The Trump Administration's position is that once accused persons have been physically deported to the El Salvadoran prison, it is a matter of foreign relations and the due process constitutional concerns are rendered moot. The Trump Administration's position is that due process concerns must give way to foreign relations concerns once the planes land in El Salvador and offload their human cargo.

Those challenging the El Salvador deportations have highlighted that the Trump Administration decided to deport the accused persons to a prison in El Salvador without hearings rather than hold such accused persons in prisons in the United States until such hearings could take place. Those challenging the El Salvador deportations also highlight that the Trump Administration entered into a contract with the El Salvadoran government to accept and imprison these accused persons prior to their arrest. This suggests that the Trump Administration deliberately manufactured the foreign entanglements with El Salvador upon which it now relies to justify not providing pre-deportation due process hearings to the persons deported.

These competing constitutional visions of the relationship between domestic due process and foreign relations authority came to a head last week in the case concerning Kilmar Abrego Garcia. Abrego Garcia was one of the persons deported to the El Salvadoran prison by the Trump Administration. United States government lawyers acknowledged in court that Abrego Garcia was mistakenly deported due to an administrative error but took the position that the Trump Administration could not do anything now that Abrego Garcia was outside the United States.

In a unanimous 9-0 opinion issued on April 11, 2025, the United States Supreme Court rejected the Trump Administration's position and ordered the Trump Administration to facilitate Abrego Garcia's release from custody in El Salvador so the case could be handled as it would have been had he not been improperly deported. None of the Supreme Court justices appointed by President Trump - Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett - dissented from this April 11, 2025 opinion.

The Trump Administration, however, is pushing back against the Supreme Court's April 11, 2025 opinion. Following the ruling, United States Secretary of State Marco Rubio stated: "The foreign policy of the United States is conducted by the President of the United States and not by a court. No court in the United States has the right to conduct the foreign policy of the United States: It's that simple. End of story."

Following the April 11, 2025 ruling, United States Attorney General Pam Bondi stated that it was now beyond the authority of the Trump Administration to comply with the Supreme Court and compel Abrego Garcia's release and return: "That is up to El Salvador, if they want to return him. That's not up to the United States. If El Salvador wants to return him, we will facilitate it, meaning provide a plane."

As the standoff between the Supreme Court and the Trump Administration over the El Salvador deportations (and Abrego Garcia's deportation in particular) continues to unfold, one point is becoming clear.:

This was not and is not a situation where pre-existing foreign entanglements with El Salvador prevented the Trump Administration from affording accused persons hearings prior to deportation consistent with due process requirements. That is, the Trump Administration could have provided the accused persons with hearings prior to deporting such persons to the prison in El Salvador, but it chose not to do so.

Rather, this was and is a situation where the Trump Administration orchestrated foreign entanglements with El Salvador so that it could later invoke such foreign entanglements as a plausible constitutional justification (under Article II of the Constitution) for not earlier providing domestic pre-deportation hearings for the accused persons as due process requires (under the Fifth Amendment of the Constitution).