The Due Process Industrial Complex: "Are We the Constitutional Crisis?"

Democrats, seemingly resigned to political irrelevance, have shifted from principled opposition to obstructionism. They are seeking to stall or block the Trump administration's fulfillment of voter will.  In the face of popular demand for mass deportation of illegal aliens they have positioned themselves as self-appointed experts on due process. Their demands for due process might hold greater totemic power if not undermined by apparent hypocrisy, having supported limited due process for January 6 defendants. The demand for due process is desperate political opportunism driven by faulty political calculus. This explains why a US senator and congressional representatives traveled to El Salvador over a single deported alien. They are demanding that illegal aliens receive more vetting for deportation than they received on entering the country under Biden. In 2016, 38% of Americans supported deporting all undocumented immigrants. Today that number is 56%. There is nothing quite like importing 10-20 million people over 4 years to make the political argument for their removal.

Kilmar Armando Abrego-Garcia, accused of ties to the terrorist-designated MS-13, is the Democrats' focal point in their push for due process for illegal aliens. His case--a political Rorschach test-- offers enough ambiguity to portray him as either a violent gang member or a wrongfully accused Maryland father. Emerging details tilting toward the former suggest a political trap set by the Trump administration. The trap was sprung by Democrats' zeal to oppose Trump and media portrayals of Abrego-Garcia as a Maryland father deported to a harsh El Salvadoran prison without due process. The trap's bait was a misleading claim--stemming from former DOJ lawyer Erez Reuven's "administrative error" statement--that Abrego-Garcia was sent to a country he was protected from, fueling demands for his return despite emerging unsavory details.

Democrat's claims that Abrego-Garcia lacked due process either betray ignorance or redefine due process as a tool to thwart Trump. They argue the administration ignored a 2019 withholding order protecting him from deportation to El Salvador, where he faced persecution risks, yet no formal process rescinded it. The DOJ counters that MS-13's February 2025 terrorist designation voids such protections for members. Also, Abrego-Garcia's deportation to El Salvador was permissible, as the order specified Guatemala. Notably, receiving a withholding order in 2019 shows Abrego-Garcia had due process. An immigrant judge denied him bond, citing evidence of MS-13 ties--based on a Prince George's County Gang Field Interview Sheet and a confidential informant's statement, upheld by the Board of Immigration Appeals--after his 2019 arrest with two MS-13 members.

Critics allege the administration misused the Alien Enemies Act of 1798 to deport Abrego-Garcia without proving MS-13 membership, pointing to a detective's 2019 report. The detective was fired soon after for unrelated misconduct, which they believe casts doubt on his report on Abrego-Garcia's gang ties. For a majority of voters due process for illegal aliens amounts to, "if you're here illegally, you need to go." The critics seek the equivalent of a criminal trial for each illegal alien. Their demands for criminal trial-like due process ignores immigration court standards. Beyond legal proceedings, Abrego-Garcia's further police encounters justify his deportation.

In May 2021, Abrego-Garcia's wife filed a temporary protective order alleging domestic violence. She accused Abrego Garcia of punching and scratching her eye. She also cited incidents in 2020 where he hit her with a boot and punched her eye. The case was dismissed when she failed to appear in court in June 2021. In December 2022, Abrego Garcia was stopped by Tennessee Highway Patrol (THP) for speeding and failing to maintain his lane in a vehicle owned by Jose Ramon Hernandez Reyes. Reyes pleaded guilty in 2020 to smuggling undocumented immigrants. The THP officer suspected human trafficking due to the absence of luggage and all passengers sharing an address. After contacting the FBI, agents instructed the officer to photograph the occupants and release the vehicle. Abrego-Garcia's return lacks justification, given his deportation's legal basis and suspected criminality. The administration has made clear that if he were to return, he would remain in custody and be deported again. There is no path to him living peacefully as a citizen of the US. Democrats appear to exploit his case to obstruct Trump's agenda. 

While pundits continue to evoke the idea of a constitutional crisis if Abrego Garcia is not returned to the US, the actual risk of crisis lies in the breadth and depth of the obstruction. Trump has often labeled divisive, accused of threatening institutions like the press and the judiciary. Yet, journalists' biased coverage--negative for Trump, positive for Harris in 2024--has eroded media trust more than his critiques. The judiciary now faces a similar self-inflicted legitimacy crisis. Tasked with interpreting law, not opposing a duly elected president, judges are obstructing Trump's agenda, conflating their role with political opposition. This muddles voters' understanding of separation of powers, where presidential overreach is remedied by elections or impeachment, not judicial overreach substituting individual biases for voter will.

Obama faced 30 lawsuits in its first 100 days, with 12 nationwide injunctions over 8 years; Biden saw 50 lawsuits in his first 100 days, with 14 injunctions over 4 years. Trump has faces 186 lawsuits, with 122 rulings--mostly injunctions--within his first 100 days, halting policies like transgender military restrictions and agency rule changes. While some reflect his unprecedented 107 executive orders, many stem from judicial activism, ignoring Article 2  executive powers vested by voters. Two judges' arrests exemplify this: their alleged lawbreaking to obstruct immigration enforcement underscores a judiciary undermining its own constitutional role.

On April 25, Milwaukee Circuit Court Judge Hannah Dugan was arrested by the FBI for allegedly helping Eduardo Flores-Ruiz, a Mexican national with a 2013 deportation order, escape ICE on April 18.  Flores-Ruiz appeared before Judge Dugan charged with assaulting his neighbors so severely they both sought medical care. Upon learning ICE agents were waiting for Flores-Ruiz she confronted them and sent them to the chief judge's office. She returned to the courtroom and escorted Flores-Ruiz through a restricted door away from the agents. Flores-Ruiz was taken into custody after a chase. Judge Dugan is charged with obstructing a federal proceeding and concealing an individual to prevent arrest.

On April 24, former New Mexico Magistrate Judge Joel Cano and his wife Nancy Cano arrested for harboring Cristian Ortega-Lopez, a Venezuelan allegedly tied to Tren de Aragua. ICE first raided the Cano property in February following an anonymous tip that Ortega-Lopez was living there and in possession of firearms. Cano admitted to destroying Ortega-Lopez' phone and discarding the remains, and Nancy Cano attempted to delete Ortega-Lopez' Facebook account. Both were attempting to hide or destroy evidence of firearms use and gang ties. Joel Cano faces a count of tempering with evidence. Nancy Cano faces one count of conspiracy to tamper with evidence. These extreme judicial actions mirror Supreme Court overreach, arguably undermining constitutional checks.

The Supreme Court could curb judicial activism by reinforcing precedent and restricting nationwide injunctions beyond specific plaintiffs, affirming its co-equal status with the President. Its April 10, 2025, ruling in Noem v. Abrego-Garcia, however, was so nuances that both the Trump administration and advocates for illegal aliens claimed victory. The ruling came in response to an appeal from the administration challenging an order from District Court Judge Paula Xinis. She ordered the administration  to effectuate and facilitate the return of Kilmar Abrego Garcia, allegedly wrongly deported. The administration argues that the court lacks jurisdiction over deportees abroad and infringes on executive foreign affairs powers. The Supreme Court partially upheld the lower court, based on the allegation of wrongful deportation, ordering the administration to facilitate the return of Abrego Garcia, citing wrongful deportation allegations, but tasking Xinis with defining "facilitate." She interprets "facilitate" as mandating active return efforts, despite the Court striking "effectuate" and requiring deference to executive authority. The ruling balances indvidual rights to challenge deportation with executive power, but its ambiguity--leaving "facilitate" undefined--arguably undermines its intent.

On April 18, 2025, the Supreme Court issued a temporary stay on the use of the Alien Enemies Act at 1 a.m with a 7-2 ruling. The unprecedented circumstance merit highlighting  Justices Alito and Thomas' dissent, authored by Alito, which concludes:

In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order. I refused to join the Court's order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate. Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J.G.G., 604 U.S._(2025) (per curiam), and this Court should follow established procedures.

Alito's dissent underscores the procedural irregularities of the Court's rushed ruling. The key issue is whether the Court even had jurisdiction to review the motion. The Supreme Court is meant to be a court of review, not first view. In this case, initial review was bypassed by the plaintiff lawyers from the ACLU. In a stunning move, the ACLU filed their emergency motion in the lower court stating inaction would be deemed a rejection of their motion if not addressed within 42 minutes. The motion was filed at 12:48 p.m. on Good Friday. They imposed a similar deadline for the Fifth Circuit Appeals Court. The Supreme Court accepted and ruled on the motion as if they, and the Executive, were somehow bound by the ACLU's arbitrary timeline, aimed at halting the deportations that voters supported. Alien Enemies Act  precedent limits judicial review to ensuring habeas corpus, not challenging the President's authority to invoke the Act. This is why, even though temporary, their 1 a.m. stay alarms observers regarding the Court's respect for separation of powers. Instead of curtailing the use of judicial obstruction as a political tool, the decision is likely to be seen as broad permission to embolden further judicial overreach. If the Judiciary loses the public trust, it will be self inflicted. The danger for Democrats is that obstructing President Trump is not a substitute for offering an alternative. Relying on the judiciary instead of anything approaching political strategy just ensures further irrelevance.