By Lara Kajs
Thinking Out Loud
Debates over immigration enforcement often focus on border security and national sovereignty. Yet recent legal disputes surrounding deportations have also raised deeper constitutional questions about due process, executive authority, and the role of the courts in protecting individual rights.
Immigration policy remains one of the most contentious issues in American politics. While debates often center on border enforcement and migration flows, recent legal battles have also highlighted fundamental constitutional questions regarding due process and the limits of executive authority.
The case of Kilmar Abrego Garcia has emerged as a focal point in this debate. His deportation and the subsequent legal challenges surrounding it raise broader concerns about the balance of power between the executive branch and the judiciary, as well as the procedural protections afforded to individuals facing removal from the United States.
The Alien Enemies Act and Executive Authority
One of the most controversial legal tools referenced in recent deportation debates is the Alien Enemies Act, a law dating back to 1798 that grants the president broad authority to detain or remove foreign nationals during times of declared war.
Historically, the act has been invoked sparingly and primarily during major conflicts involving formally declared wars. Its use in the context of modern immigration enforcement has therefore prompted renewed scrutiny from legal scholars and civil liberties advocates.
Critics argue that reliance on the Alien Enemies Act risks bypassing the procedural safeguards typically embedded within the U.S. immigration system. Under normal circumstances, individuals facing deportation are entitled to appear before an immigration judge, present evidence, and seek legal representation before removal proceedings are finalized.
The possibility that these protections could be circumvented has raised significant constitutional questions regarding the scope of executive power.
The Case of Kilmar Abrego Garcia
The legal controversy surrounding Kilmar Abrego Garcia illustrates these concerns.
Abrego Garcia, a Salvadoran national living in Maryland with his family, was deported to El Salvador in March 2025 despite a 2019 court order that had prohibited his removal due to credible threats from gangs in his home country. U.S. officials later described the deportation as the result of an administrative error.
Following his arrival in El Salvador, Abrego Garcia was transferred to the country’s Terrorism Confinement Center (CECOT), a high-security prison that has drawn international criticism from human rights organizations.
The case quickly moved through the U.S. court system. The Supreme Court ultimately ruled unanimously that the deportation had been unlawful and ordered the government to facilitate Abrego Garcia’s return so that his immigration case could proceed through the appropriate legal process.
The ruling also reaffirmed that individuals subject to deportation are entitled to due process protections under U.S. law.
Judicial Response and the Separation of Powers
Subsequent proceedings in the Fourth Circuit Court of Appeals further underscored the constitutional stakes involved in the case.
Chief Judge J. Harvie Wilkinson III issued a strongly worded opinion warning that ignoring judicial orders could undermine the constitutional balance between branches of government. In his ruling, Wilkinson wrote that the government’s position effectively claimed the authority to remove individuals from the United States and place them in foreign custody without meaningful judicial oversight.
The court emphasized that due process protections apply to all individuals within the United States, regardless of citizenship status. These protections ensure that removal proceedings follow established legal procedures rather than unilateral executive action.
The ruling reinforced the principle that immigration enforcement, while largely administered by the executive branch, remains subject to judicial review and constitutional constraints.
Even in matters of immigration enforcement, executive authority operates within the constraints of constitutional due process.”
Broader Constitutional Implications
The Abrego Garcia case highlights broader concerns about executive authority in matters involving national security and immigration enforcement.
Historically, courts have granted the executive branch considerable discretion in immigration matters. At the same time, the judiciary has repeatedly affirmed that constitutional protections—including due process—apply to individuals present within U.S. territory.
Legal scholars note that cases involving deportation often sit at the intersection of these competing principles: national sovereignty on one hand, and individual constitutional rights on the other.
How courts navigate this balance may shape the future of immigration enforcement and executive power in the United States.
The Bottom Line
The controversy surrounding the deportation of Kilmar Abrego Garcia illustrates the continuing tension between immigration enforcement policies and constitutional safeguards.
While governments retain broad authority to regulate immigration, the rule of law requires that these powers be exercised within the framework of established legal procedures. The courts play a critical role in maintaining that balance by ensuring that executive authority does not override the constitutional protections that underpin the American legal system.
As the legal proceedings continue, the case may serve as an important precedent in defining the scope of due process in immigration enforcement.
Photo Credit: Kilmar Abrego Garcia with Maryland Senator Chris Van Hollen. Photo released by the Government of El Salvador via Nayib Bukele on X.
Published April 18, 2025
About Thinking Out Loud
Thinking Out Loud is a commentary series by Lara Kajs examining international law, humanitarian crises, and the prevention of mass atrocities. Drawing on field experience in conflict and displacement settings, the column explores the legal and policy challenges that shape contemporary conflicts
Lara Kajs is the founder and executive director of The Genocide Report, a Washington, DC-based educational nonprofit focused on atrocity prevention and international law. She is the author of several field-based books on conflict, displacement, humanitarian crises, and international humanitarian law, drawing on extensive research and field experience in Yemen, Syria, and Afghanistan. Her writing and public speaking focus on atrocity crimes, forced displacement, the protection of civilians, and the legal frameworks governing armed conflict.