Looming Constitutional Crisis: America’s Foreign Deportation Scheme Raises Legal Alarms
Alex Blackburn | 1 May 2025
Summary
President Donald Trump proposes the deportation of violent US citizens to foreign prisons like El Salvador’s CECOT, expanding a policy initially targeting immigrants.
The move defies Supreme Court orders and likely violates constitutional protections, including due process and the ban on cruel and unusual punishment.
Trump’s expanded deportation policy is likely to face swift legal challenges from civil rights groups and immigration advocates. Courts may issue injunctions, especially in light of the administration’s defiance of judicial orders, such as in the Abrego Garcia case.
In an unprecedented move, President Donald Trump has revived and expanded a controversial policy involving the deportation of individuals, including US citizens, to foreign prisons, most notably El Salvador's notorious mega-prison, CECOT. Under a deal signed with Salvadoran President Nayib Bukele, the US has already begun transferring immigrants, including some from countries such as Venezuela and Panama, to detention facilities in Central America, regardless of whether they are citizens of those countries.
The proposal also suggests sending US citizens convicted of violent crimes to these same foreign prisons. During a recent White House visit from Bukele, Trump suggested he would like to send "homegrown criminals" abroad and praised Bukele's draconian prison system. While he acknowledged that any such move would require legal validation, Trump was adamant in his support for the idea, referring to violent offenders as those who do not deserve the protection of the American justice system.
The controversy has been compounded by the wrongful deportation of Kilmar Abrego Garcia, a Salvadoran man living in Maryland who had a valid court order blocking his removal. Despite the order, Garcia was forcibly transferred to CECOT. The US Supreme Court later ruled that the Trump administration should be ordered to facilitate his return, but was rejected by both Trump and Bukele. Trump has continued to claim, without evidence or charges, that Garcia is affiliated with the MS-13 gang. The defiance of the judiciary triggered widespread concern about constitutional violations and the erosion of due process.
Trump’s proposal underlines a direct challenge to the US Constitution, as American citizens cannot be deported under immigration law. The forced removal of a US citizen to a foreign nation, particularly to a prison-like CECOT, known for its harsh and abusive conditions, would likely constitute a violation of multiple constitutional protections, including the due process clause of the Fifth Amendment and the Eighth Amendment's ban on cruel and unusual punishment.
Trump’s policy on immigrants has drawn criticism for bypassing legal safeguards. Immigrants from countries like Venezuela have been sent to El Salvador without a hearing or any opportunity to respond to the evidence against them, in what legal scholars describe as a systemic denial of the judicial process. The administration justifies on the argument that American courts no longer have authority once someone is outside US jurisdiction. This assertion alarmed Supreme Court Justice Sonia Sotomayor, who warned that such logic could be used to remove not just immigrants but citizens without any path to redress.
The First Step Act, a 2018 law signed by Trump during his first administration, mandates that incarcerated individuals be housed as close to their families as possible and no more than 500 miles from their homes when feasible. Exporting prisoners to El Salvador contradicts this provision and could render the act meaningless. Another concerning loophole involves targeting naturalised citizens, stripping them of their citizenship for specific offences like fraud or alleged terrorism ties for deportation. While this affects only a small population, it sets a dangerous precedent: the weaponisation of citizenship status as a tool of exile.
Internationally, these actions may violate human rights conventions prohibiting the transfer of individuals to countries where they risk persecution or torture. El Salvador under Bukele has seen dramatic declines in violence, but at the cost of widespread human rights violations, particularly inside its prison system. The CECOT facility, a symbol of Bukele's crackdown, is notorious for its inhumane conditions, making its use by the US a potential violation of international law. Domestically, the chilling precedent of removing citizens without judicial review could pave the way for further erosions of civil liberties.
Casa Presidencial El Salvador, CC-BY 1.0
Forecast
Short-term (Now - 3 months)
Trump’s expanded deportation policy is likely to face swift legal challenges from civil rights groups and immigration advocates. Courts may issue injunctions, especially in light of the administration’s defiance of judicial orders, such as in the Abrego Garcia case.
Congressional scrutiny is likely, with potential hearings focused on constitutional violations and the erosion of judicial authority. Public backlash could intensify, particularly if US citizens are deported or further abuses emerge at CECOT.
International criticisms from human rights organisations are almost certain, as the policy raises serious concerns about due process and the treatment of detainees. Politically, the issue is likely to become a flashpoint throughout 2025, deepening partisan divides over immigration, and increasing the likelihood of Democratic success at the 2026 mid-term elections.
Long-term (>1 year)
There is a realistic possibility that this policy could spark a constitutional crisis if the executive branch continues to ignore Supreme Court rulings. Such defiance threatens the judiciary’s authority and could set a dangerous precedent for unchecked executive power.
If deportations of citizens proceed, it is likely that it will temporarily redefine the nature of citizenship, turning it into a conditional status vulnerable to political manipulation. The use of denaturalisation as a tool of exile may expand, raising concerns about civil liberties and destabilising protections for naturalised citizens. Moreover, the US risks violating human rights treaties and straining diplomatic relations.
Domestically, it is highly likely that pressure will grow for legal or constitutional reforms to limit executive overreach and reaffirm the judiciary’s role, though progress will likely depend on overcoming intense political resistance.
