Trump is acting as if he wants to alienate potentially sympathetic justices and appellate judges upon whom he may need to rely later.

The case of Kilmar Abrego Garcia is a bit of a tempest in a teapot, given that the government would be on solid legal grounds deporting Abrego Garcia, but admits that it screwed up in deporting him to El Salvador. That’s the one country as to which there was a 2019 order from an immigration judge ruling that it was too dangerous for Abrego Garcia to send him back to the country of his birth and citizenship. The case, however, raises some serious issues about due process of law in the deportation context as well as, specifically, the Trump Administration’s insistence that it has no power or duty to fix its own mistake in sending Abrego Garcia to El Salvador. I cannot recommend strongly enough that you read Andy McCarthy’s extensive coverage of the Abrego Garcia case. Just since Monday, read here, here, here, and here. Andy’s essential point is that it’s irrelevant that the courts can’t order the president or the secretary of state to negotiate an agreement with El Salvador over the custody of Abrego Garcia because we already have an agreement with El Salvador regarding custody of such detainees, and therefore, as a legal matter, he is still within the reach of the executive branch.

This is why it’s so disingenuous for Vice President JD Vance to ask on X/Twitter, in arguing against any duty on the part of the executive branch to get Abrego Garcia back: “Are you proposing that we invade El Salvador to retrieve a gang member with no legal right to be in our country? Where in the Supreme Court’s decision does it require us to do that?” Now, set aside the by-now habitual tendency of Vance to frame every foreign-policy argument as if war is the only tool by which the United States can pursue its interests. Set aside the rather hilarious spectacle of Vance arguing that Trump could not be expected to make any demands of President Nayib Bukele in their meeting in the Oval Office after the United States sent $700 million in aid to Bukele’s nation over the past four years — a stance very much at odds with how Vance felt about Trump’s entitlement to make demands of Volodymyr Zelensky when they met in the Oval Office. The reality, as Andy has documented, is that we have the legal right and power to ask Bukele to give back the prisoner he is holding on our behalf.

This is all such an unnecessary fight for the executive to pick with the courts, at a time when the Supreme Court and several of the federal circuits are broadly sympathetic to the Trump administration’s assertions of executive power. Trump is acting as if he wants to alienate potentially sympathetic justices and appellate judges upon whom he may need to rely later (as he did in 2024 just to stay on the ballot and out of criminal courtrooms all year). As Jeff Blehar has detailed, there is cause to worry that this is a deliberate strategy cooked up by zealots such as Stephen Miller for the purpose of testing how far the executive branch can operate outside of judicial review and other external constraints. I’d much rather see the administration focus on solidifying its control within the executive branch, an important and longstanding priority on which both Trump and movement conservatives have long been interested and upon which he should expect the justices to be persuadable. But then, one wins cases in the Supreme Court by demonstrating that one’s positions are reasonable, whereas Trump’s long-preferred negotiating strategy is to get people to go along with him by being unreasonable. That can work in a number of negotiating settings, but it’s a good way to lose winnable cases in the rules-and-reasons world of appellate courts.

Vance has another argument, made in a thread with Zaid Jilani:

Biden overwhelmed the system with illegal migration. Is your proposed solution to give a jury trial to all 20 million illegal aliens (more if you count those already here)? And of course, our very robust jury trial system produces errors. So I’m not “OK with deporting innocent people” any more than I’m “OK with sentencing innocent people.” What I am OK with is the reality that any human system will produce errors. Further, I accept the actual tradeoff: between not enforcing the law and enforcing the law. And I choose the latter despite the inevitable errors. You are hiding behind “due process” while ignoring that your actual solution means the ratification of a Biden border crisis that was rejected at the ballot box…

You say immigration courts adjudicate in minutes. Sometimes. How many minutes? And how much background work is necessary before an immigration hearing? And add the times for appeals, first administratively and then judicially. Add asylum claimants, TPS revocations, and any number of other ways the left has used to game the immigration system over the last decade. Are you aware that years before Biden’s migrant wave, this system was already overwhelmed? Now, you cavalierly assume that they can “rocket docket” themselves into a solution despite all actual evidence to the contrary, because sometimes a deportation order can be handled in “minutes.” I’m sick of abstract [b.s.] arguments. What your proposal does, whether you know it or not, is ratify the presence of millions of illegals aliens in our country. I reject that.

(Yes, the vice president of the United States typed out the whole bad word on a public platform. Sigh.)

The argument that we’ve simply overwhelmed the system is a serious one. But it’s also a practical problem. As a matter of principle, the American legal system is grounded on the notion that the rights of individuals to things like due process of law are superior to the claims of efficiency. That doesn’t mean that we ignore efficiency or practicality in determining what process is due, but it does mean that we should avoid, wherever possible, just throwing overboard the rights of the smallest minority — the individual — to be heard to challenge and occasionally correct the decisions of a vast government bureaucracy. It’s fine for Vance to say (truthfully) that no human system is without errors. It’s another to couple that with the argument that there is nothing short of war that we can do to correct our errors when we know that we’ve made them.

The answer ought to be an obvious one, with two components. One, on which there actually is rare bipartisan consensus, is to hire more immigration judges — not Article III judges but the administrative law officers who traditionally have done factfinding in deportation cases. The other, which is harder work, is to streamline the proceedings to reduce delay for delay’s sake.

The Lankford immigration bill that was circulated last year would have funded more immigration judges. That bill was the victim of the leaders of both parties: Joe Biden wanted to stuff the bill with validations of his lawless border policies and then use it to pretend that the border crisis, and Donald Trump preferred that Republicans vote the bill down and run on demanding a better immigration policy. It also got tangled in the politics of Ukraine aid. But for all the bill’s vices, there were plenty of people in both parties willing to vote to fund more immigration judges as well as more Border Patrol agents. We shouldn’t have to wait for the end of the annual budget process to get to work on that. Doing so can give the administration a path to legalization for its deportation goals.