The Injustice Is the Point

Hobbesian thoughts on the Kilmar Abrego García case

I had been meaning to write a Passover-related post today, since we’re in the middle of the holiday and thoughts on tyranny seem particularly apposite these days, but I’m going to defer that for a bit to write something about the Kilmar Abrego García case, because thoughts on tyranny seem particularly apposite in the middle of the Passover holiday.

So far as I can discern, the facts of the case are these. Abrego García was a non-citizen who entered the country without authorization as a teenager in 2011. His mother claims the reason he was sent here was to escape from El Salvador’s criminal gangs, who were harassing the family and threatening to forcibly recruit Abrego García into the gang if his mother did not pay them protection money. (The rest of the family has since fled to Guatemala.) In March of 2019, Abrego García was arrested in a Home Depot parking lot seeking work as a day laborer and handed over to ICE. A confidential informant accused him of being a member of the MS-13 gang, and one immigration judge ruled that this was sufficient evidence for his detention, a judgement which another judge upheld on appeal.

In June of that year, while still in detention, Abrego García married his then-girlfriend, and in October of that year he applied for asylum or “withholding of removal” status, on the basis that he faced a high likelihood of violent harm if deported to El Salvador. The latter status in turn was granted him by another judge. (The difference between “withholding of removal” status and asylum is obscure to me.) From that point until March of this year, Abrego García lived and worked legally in the United States, and remained in required contact with immigration authorities.

Then, quite unexpectedly, Abrego García was arrested and shipped to El Salvador for incarceration. The administration claims this was an “administrative error” though I’m a little vague on the nature of the error and I haven’t been able to find any details on what the administration claims happened, probably because the administration has no interest in revealing how it selects people for deportation, nor the details of its arrangement with El Salvador. In the weeks since, a District Court judge ruled that the government must bring Abrego García back (since his deportation was flagrantly illegal), an appeals court panel unanimously concurred, and the Supreme Court unanimously concurred as well—but with a slight change in wording, saying that the government must “facilitate” Abrego García’s return rather than “facilitate and effectuate.” It is on the basis of this shift that the administration is claiming total victory, saying that all they are legally obligated to do is fly Abrego García home if the authorities in El Salvador choose to deport him to the United States. If President Bukele prefers to keep him in prison, then the United States is under no obligation to do anything more—so the administration says.

It is very possible that, de facto, the administration will be proven right. They are definitely right that American courts cannot order the authorities in El Salvador to send Abrego García back. The Supreme Court could order the administration to ask for him back, but they haven’t even quite done that, because they’ve taken the view that any communication with a foreign government amounts to the conduct of foreign policy, where the administration can legitimately weigh different objectives without the courts’ interference. So all they’ve done is say that the administration is obligated to “facilitate” his return—which really does seem like a fairly weak and unenforceable word. But even if they did order the administration to ask for Abrego García back, the administration could easily coordinate with the government of El Salvador such that the former claims to have asked and the latter claims to have refused. As a practical matter, therefore, it’s quite possible that Abrego García will die violently in a Salvadoran prison—in spite of it never having been determined that he actually is a member of MS-13—because of what the administration acknowledges is an administrative error.

That sounds like a gross miscarriage of justice. Of course, miscarriages of justice do happen all the time, even in America and even when Donald Trump isn’t president. People who are likely guilty of the most heinous crimes are never arrested or are set free because of legal technicalities, while likely-innocent people rot in prison or even are executed for similar reasons. What’s distinctive about the Abrego García case, I think, is that the injustice is the point. The government pursued the matter in the first place and has continued to pursue it not in spite of the ridiculousness of its case but because of it.

To begin with, I don’t believe that the people who deported Abrego García did so while unaware that a judge had granted him “withholding of removal” status. Abrego García was in regular contact with immigration authorities; they surely had a file on him that included this judgement. It’s just not plausible to me that they didn’t know—and, in fact, the government has not claimed that they didn’t know, only that they made a mistake.

More important, though, the fact that the government clearly does not want to bring him back reinforces the conclusion that the goal was to violate his status. After all, if the government wanted to demonstrate that they were going to be aggressive about deportations but remain within the law, they would have asked for Abrego García’s return before a judge even ruled on the matter, while simultaneously claiming the right to detain him pending deportation—whether to El Salvador after appealing his case to get his protected status removed, or to another country if they failed in that effort. They aren’t doing that, but rather the opposite, fighting this one highly dubious case to the most extreme conclusion.

Why? The answer, I think, is deeper than any specific policy goal. I don’t deny that there may be policy goals in the mix, such as to scare authorized immigrants and even some legal residents into self-deportation. The government doesn’t have the resources to deport millions of people, nor does El Salvador have room to hold them all prisoner, so terror will have to play a large role in facilitating a wholesale exodus if that’s what’s desired. But I don’t think that’s the heart of the matter. The deeper reason for fighting this case, I think, relates to sovereignty—what it means and where the Trump administration is claiming it resides.

In Leviathan, Thomas Hobbes lays out the case for surrender of all of one’s rights to a single, absolute authority, thereby to escape the state of nature of perpetual fear of violent death. Once surrendered, there can be no renegotiation, no right to dissent or to revolt, neither on an individual or a collective level; the body to whom all authority has been ceded cannot be opposed, even in cases where it behaves unjustly, because any such concession quickly causes authority to unravel and return the commonwealth to a state of nature, the worst possible outcome. The sovereign doesn’t have to be a monarch (though Hobbes thinks monarchy is the best form of government), but regardless of the form, sovereignty must be unified and absolute.

The thing is, even if you buy Hobbes’s argument—and it lurks in the background of more of our thinking than we generally acknowledge, including our legal thinking—the problem with that conclusion is: how do you know that the sovereign is truly sovereign? How do you know that it isn’t limited by some other power that is actually sovereign, or that power isn’t divided and that therefore you aren’t in a properly functioning commonwealth at all? The only way you can know is by putting it to the test, and the only test you can put is the test of manifest injustice. After all, if the sovereign only metes out violence according to the law, then maybe the law—or the lawyers and judges—are truly sovereign. So the sovereign must violate the law, in order to demonstrate that it is sovereign.

And it’s not enough to violate the law. You need to violate the law in such a way that nobody feels they are protected from the authority’s arbitrary will, lest they think the sovereign is limited in some way that privileges them, or even that they are part of the truly sovereign group. In the end, Hobbesian logic must leave every individual subject to Leviathan as fearful of random violence as they were in the state of nature, because if they have anything to rely on other than the sovereign’s inherently changeable will, that anything could be understood as a limit on the sovereign’s authority, and an authority with limits is not a sovereign at all.

I can’t know for sure, obviously, but it does feel to me like that’s the precedent the Abrego García case is intended to set. That, to me, is the difference from the Bush-era renditions. Those resulted in all sorts of horrible human rights violations, and set terrible precedents (some of which are now being relied upon). But they were fundamentally driven by policy goals related to fighting the War on Terror; the damage to the constitution was a byproduct. I don’t think that’s the case here. The Abrego García case isn’t terribly important for the government’s stated goals related to immigration, but it is perfectly designed to force the court to either accede to blatant illegality or to risk flagrant and open defiance of its edicts. It’s a constitutional crisis either way—and that’s the point. We’re facing a constitutional crisis because the government wants a constitutional crisis, because their fundamental objective is the assertion of absolute presidential sovereignty.