Trump Is Sending Immigrants to Guantanamo—And The Supreme Court Will Let Him

Forget the Constitution—The Supreme Court Is Ready to Approve Trump’s Immigration Camps

Aerial view of Bulkeley Hall, the headquarters and administration building at Guantanamo Bay Naval Base, May 6, 2010. U.S. Navy photo by Chief Mass Communication Specialist Bill Mesta/Released/US Department of Defense

President Donald Trump has declared a national emergency over immigration, launching a series of aggressive Detention and Removal Operations (DRO) across the United States.

That is, perhaps, an understatement. The reality on the ground has been one of fear, disruption, and chaos—terrified communities, businesses thrown into turmoil, food prices soaring, and even U.S. citizens mistakenly detained for looking or sounding “Hispanic.” The absurdity reached new heights when Native Americans, who have been natural-born U.S. citizens since the passage of the Snyder Act in 1924, were also swept up in these operations.

To put it bluntly: it’s been ugly.

Then, in a dramatic escalation, the administration announced that undocumented immigrants, many of whom Trump has broadly labeled as "criminals," will now be detained at Guantanamo Bay (GTMO, or "Gitmo"), Cuba. At the same time, El Salvador has agreed to accept a number of deportees classified as "violent offenders" for detention, though details on that arrangement remain unclear.

At first glance, this all sounds unquestionably illegal—the U.S. government shipping people off to a military detention facility or a foreign country for incarceration. And if not outright illegal, it certainly sounds like something out of an authoritarian playbook.

Sister, you have no idea.

President Trump signing the Executive Order to send immigrants to Guantanamo Bay, The White House, January 29, 2025

I will break down the legal and political implications of what the President has announced. We’ll examine how the law treats undocumented immigrants, what rights they do and don’t have, and whether it is lawful to detain them at GTMO or send them to El Salvador.

And, of course, we’ll look at what the Supreme Court is likely to say. Spoiler alert: you’re probably not going to like it.

While I believe this policy is reckless, inhumane, and blatantly immoral, if not illegal, violating both international treaties and the U.S. Constitution, I am also confident that the Supreme Court will rubber-stamp Trump’s actions. This administration has no hesitation in telling the international human rights community to go fornicate itself with an iron rod, and I don’t expect the Court to stand in its way.

Let’s get started.

The Legal Framework: Who Can Be Detained, and Why?

The central question is whether these migrants are criminals. There’s two reasons for this idea in my view. One - in general, the American people really don’t care what happens to criminals; two - if they’re criminals, the justification for “the ends justify the means,” are much more palpable politically. The President blanket claims everyone’s a criminal; ergo, everyone gets shipped off to prison. His team repeats that line everywhere they go. The legal reality is nuanced. That’s not the case (at least not if you’re interested in complying with the law.)

Unlawful presence in the U.S. is a civil violation, not a criminal offense. Individuals who cross illegally for the first time or who overstay their lawful visas commit a misdemeanor under 8 U.S.C. § 1325.

Reentry after deportation is a felony under 8 U.S.C. § 1326, but requires prior removal. Those convicted of actual crimes (drug offenses, violent crimes, etc.) could be deported but must still be processed through immigration courts.

Reentry after removal following an “aggravated felony” conviction under U.S.C. § 1326(b)(2) is the most serious of the felonies associated with immigration.

Thus, labeling all detainees as "criminals" is misleading. Many may have never committed a crime beyond crossing the border illegally. Some may fall into categories that label them as “criminals,” but I find it highly unlikely that we have 12 million “felons” in the United States (but we do have one in the White House.)

Difference between Misdemeanors and Felonies (for those who aren’t lawyers)

I realize that terms like “misdemeanor” and “felony” get thrown around a lot, and for those who aren’t lawyers, the distinction might not always be clear. But it matters—a lot. So let’s make sure we’re all on the same page.

If you’re reading my Substack, you probably already know that being labeled a “felon” is a very bad thing. Unfortunately, not enough voters in the last election seemed to grasp that concept. And because that distinction carries real legal and political consequences, I feel compelled to clarify exactly what separates misdemeanors from felonies—especially in the context of immigration.

The reality is that most undocumented immigrants in the U.S. are not “criminals” in the way the term is commonly understood. They have not been convicted of felonies, nor are they likely to be charged with one. Despite what the administration would have you believe, their presence here is a civil violation, not a criminal offense, and lumping them in with actual felons is both misleading and politically manipulative.

Under U.S. federal criminal law, the distinction between a misdemeanor and a felony is based primarily on the severity of the offense and the potential punishment.

Misdemeanor

• Definition: A less severe crime carries a maximum sentence of one year or less in jail or another form of detention (such as probation or fines).

• Sentencing: Typically results in county jail time, fines, community service, or probation rather than federal prison.

• Examples: Simple assault, first-time illegal entry (8 U.S.C. § 1325), petty theft, disorderly conduct, DUI (without aggravating factors).

• Trial Process: Misdemeanor cases often involve faster proceedings, and depending on the jurisdiction, defendants may not always have the right to a jury trial.

Felony

• Definition: A more serious crime that carries a potential sentence of more than one year in state or federal prison.

• Sentencing: This can range from one year to life imprisonment (or the death penalty in extreme cases). Felonies are served in state or federal prisons, not local jails. Prisons differ from jails in that they are facilities designed to hold people for extended periods of time.

• Examples: Murder, armed robbery, rape, narcotics trafficking, illegal reentry after deportation (8 U.S.C. § 1326), grand theft, wire fraud, falsification of business records (like the President was convicted of committing.)_

• Trial Process: Felonies involve lengthier legal proceedings, more procedural protections, and always include the right to a jury trial if the defendant chooses.

Legal and Practical Differences

1. Criminal Record Impact – Felony convictions have far more severe long-term consequences, including loss of voting rights, firearm possession bans, and employment restrictions.

2. Prosecutorial Discretion – Prosecutors may plea down a felony to a misdemeanor depending on the case details and cooperation of the defendant.

3. Immigration Consequences – In the immigration context, certain misdemeanors may not result in deportation, but felonies (especially aggravated felonies) almost always do.

Now that we’ve established that most undocumented migrants in the U.S. aren’t felons—and that their violation is more akin to a civil infraction, like speeding, rather than a serious crime—let’s break down how detention and removal actually work from a legal and procedural standpoint.

You have the right to remain silent …

Under normal circumstances, when a person is arrested and detained in the United States for breaking the law (regardless of the severity), they are entitled to a full range of constitutional protections. These rights stem from the Bill of Rights and ensure due process, legal representation, protection against unlawful detention, and humane treatment.

• Fourth Amendment: Protects against unreasonable searches and seizures, meaning arrests require probable cause, and law enforcement must typically obtain judicial warrants before detaining someone.

• Fifth Amendment: Ensures due process, meaning that before being deprived of life, liberty, or property, a person must be given a fair hearing before an impartial tribunal.

• Sixth Amendment: Guarantees the right to legal counsel, the right to a speedy and public trial, and the right to confront witnesses against them.

• Eighth Amendment: Prohibits cruel and unusual punishment, including excessive bail or inhumane detention conditions.

These protections form the backbone of the criminal justice system, ensuring that individuals—regardless of citizenship status—receive fair legal treatment when accused of a crime in the United States. However, immigration law operates under an entirely different legal framework, which strips away many of these rights.

Why Immigration Detention Is Different

Unlike criminal detention, immigration detention is classified as an “administrative” process, not a punitive one. The U.S. government does not classify the detention of non-citizens for immigration violations as a criminal punishment but rather as a civil enforcement mechanism to facilitate removal from the country. This classification is crucial because the constitutional safeguards that protect criminal detainees do not apply to immigration detainees.

The Supreme Court has long upheld this distinction, treating immigration enforcement as a function of national sovereignty that falls mainly within the discretion of Congress and the Executive Branch under the plenary power doctrine. This doctrine, first articulated in Chae Chan Ping v. United States (1889), establishes that immigration policy is primarily “a political matter,” meaning that courts historically defer to Congress and the President regarding regulating entry, removal, and detention of non-citizens.

The Legal Authorities That Govern Immigration Detention

The key federal statutes that authorize immigration detention include:

• 8 U.S.C. § 1226: Allows the Department of Homeland Security (DHS) to detain non-citizens pending removal proceedings. Certain categories of non-citizens—such as those with criminal convictions—are subject to mandatory detention under § 1226(c), meaning they cannot be released on bond.

• 8 U.S.C. § 1231: Governs detention after a final removal order has been issued, authorizing the detention of a non-citizen for up to 90 days for deportation. The Supreme Court’s ruling in Zadvydas v. Davis (2001) set a general six-month limit on post-removal detention unless the government can show that removal is likely in the near future.

• 8 U.S.C. § 1182(d)(5): Allows the government to parole certain non-citizens into the U.S. for humanitarian reasons, but this is entirely discretionary and does not grant them legal status.

These laws provide broad latitude to the executive branch to detain non-citizens for extended periods without the same legal protections afforded to criminal defendants.

Why Constitutional Protections That Normally Apply Do Not Apply in Immigration Detention

Because immigration detention is not considered a criminal punishment, the courts have ruled that many fundamental constitutional protections either do not apply at all or apply in a significantly limited way.

• No Fourth Amendment Protections Against Warrantless Arrests: Unlike criminal cases, where an arrest almost always requires a judicial warrant, immigration officers can detain non-citizens without a warrant and hold them solely on the basis of an administrative order issued by DHS or ICE. Courts have upheld that immigration enforcement is an executive function, meaning that the usual probable cause standards do not apply.

• Limited Fifth Amendment Due Process Protections: Non-citizens do have some due process rights, but they are far weaker than those available to U.S. citizens and lawful permanent residents. The Supreme Court has ruled that non-citizens physically present in the U.S. are entitled to some due process, but those detained at offshore locations (like Guantanamo Bay) or intercepted before entry have virtually no constitutional protections (Johnson v. Eisentrager, 1950).

• No Sixth Amendment Right to Counsel: In criminal cases, defendants must be provided an attorney if they cannot afford one. However, in immigration proceedings, there is no right to a government-provided lawyer. If a non-citizen cannot afford an attorney, they must represent themselves, even if they do not speak English or understand U.S. immigration law.

• No Eighth Amendment Protections Against Cruel and Unusual Punishment: Immigration detention is not classified as punitive, meaning that the Eighth Amendment does not apply. As a result, non-citizens can be detained for months or years in conditions that would likely be unconstitutional if they were criminal detainees.

The Supreme Court’s View on Immigration Detention and Executive Power

The Supreme Court has consistently upheld the government’s broad authority to detain non-citizens under the plenary power doctrine, often ruling that national security and immigration enforcement outweigh individual rights in these cases.

• Demore v. Kim (2003): Upheld the mandatory detention of non-citizens with certain criminal convictions under 8 U.S.C. § 1226(c), ruling that indefinite detention without bond does not violate due process.

• Zadvydas v. Davis (2001): Limited post-removal detention to six months unless removal is imminent, but did not extend this protection to those still awaiting deportation proceedings.

• Trump v. Hawaii (2018): Reaffirmed that immigration policy is a function of national sovereignty, meaning courts should defer to the executive branch on decisions related to entry and exclusion.

How This Legal Framework Enables GTMO Detention

Because immigration detention is not classified as punishment, and the Supreme Court has upheld broad executive authority over immigration enforcement, the government can detain non-citizens indefinitely under civil, non-criminal authority. This is what makes Trump’s proposed use of Guantanamo Bay (GTMO) for migrant detention legally viable:

• If GTMO is designated as an immigration processing center, detainees may not receive full due process protections because they are not technically on U.S. soil.

• Courts have historically ruled that non-citizens outside the U.S. have virtually no constitutional rights (Johnson v. Eisentrager).

• If Trump’s administration argues that GTMO detainees are simply being "held for removal" rather than punished, courts may defer to the executive’s authority to detain them indefinitely.

While individuals arrested for crimes in the U.S. enjoy a full suite of constitutional protections, immigration detainees do not because their detention is classified as an administrative process rather than a criminal one. This legal distinction—upheld for over a century—means that policies like indefinite immigration detention, offshore processing, and GTMO detention are not only possible but legally defensible under existing Supreme Court precedents.

(As an aside, I will set aside the question of Posse Comitatus for now. There are significant legal questions regarding the Department of Defense’s authority to detain individuals who were first apprehended on U.S. soil and then transferred to Guantanamo Bay. This issue is complex and multifaceted, and a deep dive into it would turn this article into a four-hour read.

To summarize, the administration will likely justify DoD’s involvement by invoking emergency declarations, past migration precedents (such as the Haitian and Cuban crises), and national security emergency provisions under Title 10, Title 50, and other statutes. However, these arguments misstate key legal principles—particularly when applied to migrants who were already within U.S. jurisdiction before being moved offshore. While I find these justifications legally unconvincing, I fully expect the Supreme Court to uphold them, allowing DoD to participate in Detention and Removal Operations (DRO) even when detainees were initially inside the United States.

Why do I believe that? That’s a complicated question for another article.)

Legal Framework for Detaining Migrants in El Salvador Under U.S. Agreements

Detainees at the Cecot mega-prison in Tecoluca, El Salvador, on February 24, 2023. Office of the President of El Salvador/Getty Images

With the announcement that El Salvador is willing to take “criminal deportees,” (whatever that might mean), and with the details sketchy at best, I must admit this section is, at least in some part, conjecture. Not in terms of what I’ve written, that part is solid enough, but I must admit I’m not entirely sure what the Administration is actually contemplating. For the moment, what I’m presuming is the case is that instead of sending deportees to a DHS facility inside the US, it will instead send them to El Salvador.

The United States' plan to send deportees to El Salvador for detention raises complex legal, diplomatic, and human rights questions. Unlike U.S. immigration detention, which operates under a civil, non-criminal enforcement framework, detention in a foreign country like El Salvador is subject to Salvadoran domestic law and international treaties.

How the U.S. Can Legally Transfer Migrants to El Salvador

The U.S. has previously used bilateral agreements to transfer immigration enforcement responsibilities to foreign nations. The most well-known precedent is the Migrant Protection Protocols (MPP) or "Remain in Mexico" program, in which asylum seekers were forced to wait in Mexico while their cases were adjudicated in U.S. immigration courts. The United Kingdom’s deal with Rwanda, in which asylum seekers are sent to Rwanda for processing, is another modern example of outsourcing detention to a third country.

Under international law, the U.S. can negotiate a bilateral agreement with El Salvador that allows it to deport non-citizens to Salvadoran custody rather than detaining them in U.S. facilities. The specific legal authority for this transfer would likely be grounded in:

• 8 U.S.C. § 1231 – The U.S. government’s authority to remove non-citizens after a final order of deportation.

• Diplomatic Agreements/Treaties – The U.S. would need to negotiate with El Salvador under a framework similar to past safe third-country agreements (e.g., the U.S.-Guatemala 2019 agreement).

• Presidential Authority – The executive branch has broad discretion to decide where deportees are sent and whether another country qualifies as a “safe” location for detainees.

So, the “simple” answer to the question of “can the US legally do this,” is a “yes, the US can legally transfer deportees to other countries.” There are some nuances to it all, and as you’ll see in another section, some significant complications perhaps, but it is legal, unlike many other things this Administration has attempted.

That all said, this will undoubtedly get messy. I’m not sure the Trump Administration cares all that much.

Legal Authority of El Salvador to Detain U.S. Deportees

Once non-citizens arrive in El Salvador, they fall under Salvadoran jurisdiction. The legal basis for detaining them would be governed by El Salvador’s domestic laws, which generally include:

• Salvadoran Immigration Law – The country has the power to hold foreign nationals who lack legal status within its territory.

• Criminal Law for Violent Offenders – If the U.S. is specifically deporting individuals classified as "violent offenders," they may be detained under Salvadoran penal codes related to public safety threats.

• Bilateral Agreement Conditions – The Salvadoran government would likely establish a legal framework specific to U.S. deportees, similar to how Guatemala temporarily agreed to accept asylum seekers under Trump’s Safe Third Country Agreement.

Potential Human Rights and Legal Challenges

Although legal in principle, detaining U.S. deportees in El Salvador raises serious concerns about human rights protections, due process, and treatment conditions.

• Risk of Arbitrary Detention – El Salvador could be accused of violating international human rights norms if the agreement does not include clear legal procedures for detainees. That said, let’s face it: when you think of “Human Rights,” El Salvador isn’t precisely the word that springs right off the tongue. Now, is it?

• Non-Refoulement Violations – Under the Convention Against Torture (CAT) and the 1951 Refugee Convention, the U.S. and El Salvador cannot deport individuals to countries where they face persecution or torture. If Salvadoran authorities fail to screen individuals properly, the policy could face legal challenges in international courts.

• Lack of Due Process – Unlike in the U.S., where detainees can appeal deportation, those sent to El Salvador may have no access to meaningful legal recourse to contest their detention.

• Inhumane Conditions – El Salvador’s prison and detention conditions have been widely criticized for overcrowding, lack of medical care, and poor human rights oversight. If U.S. deportees are subjected to these conditions, the policy could face scrutiny from organizations like the Inter-American Commission on Human Rights (IACHR).

Legal Precedent and Supreme Court Challenges

While the U.S. has the authority to deport individuals to foreign detention centers, the Supreme Court has never ruled directly on the legality of outsourcing detention to a third country. The closest relevant cases include:

• Zadvydas v. Davis (2001) – Limited indefinite detention in the U.S. but did not address deportation to third countries.

• Trump v. Hawaii (2018) – Affirmed the President’s broad authority over immigration, suggesting courts might defer to the executive on deportation destinations.

• Sale v. Haitian Centers Council (1993) – Ruled that the U.S. can intercept and return migrants without granting them full asylum protections, which could be used as a basis for offshore detention policies.

In the final section, I’ll discuss this wicket and all of the problems because, ultimately, all of these questions will wind up before the Supreme Court. But before we get to that question, there’s one last element I’d want to discuss: the political challenges associated with using Gitmo and El Salvador.

Legal, but a Political Nuclear Explosion

The decision to use Guantanamo Bay and El Salvador as detention sites for immigration enforcement presents significant political, diplomatic, and logistical challenges. While the legal framework largely supports the executive’s authority to implement these measures, the domestic and international political ramifications could be severe.

Domestic Political Challenges

1. Public Perception and Political Polarization

The optics of detaining migrants at GTMO—a site historically associated with wartime detainees, terrorism suspects, and indefinite detention without trial—will almost certainly provoke a backlash. Even for Americans who support strict immigration enforcement, the idea of using a military-run offshore facility carries historical baggage that could be politically damaging.

• Democratic Opposition: Democrats and immigration advocacy groups will frame this policy as a return to Bush-era extrajudicial detention practices, emphasizing due process concerns and human rights violations. Expect loud opposition from Congressional Democrats, the ACLU, and international human rights organizations.

• Republican Divide: While Trump’s hardline base may embrace the GTMO plan as an aggressive crackdown on illegal immigration, more traditional establishment Republicans—especially those in Latino-heavy districts or with foreign policy concerns—may worry about the diplomatic fallout and logistical failures.

• Media Narrative: The mainstream media will likely compare GTMO migrant detention to the worst elements of post-9/11 policies, tying it to past abuses, indefinite detention, and legal black holes.

2. Congressional Oversight and Funding Battles

While the executive branch has wide authority over immigration enforcement, the actual implementation of detaining migrants at GTMO or transferring detainees to El Salvador requires funding and logistical support, much of which falls under Congressional control.

• Budgetary Challenges: While DHS and DoD have discretionary funds, large-scale detention at GTMO requires Congressional appropriations, which Democrats will fiercely oppose.

• Oversight Hearings: Expect House and Senate hearings investigating conditions, costs, and legality, especially if reports emerge of poor treatment, indefinite detention, or diplomatic conflicts.

• Potential Legal Challenges: Congressional Democrats or advocacy groups may push for federal lawsuits to halt the program, though the Supreme Court is likely to side with the executive branch.

3. Logistical and Administrative Problems

• Processing & Infrastructure Limitations: GTMO was never designed to handle large-scale immigration detention. Current infrastructure is built for military and intelligence operations, not for civil detention of families, asylum seekers, and low-level immigration violators.

• Legal Access Issues: Immigration detainees are entitled to some due process. This means the administration must facilitate legal counsel and hearings, which is far more difficult offshore than in a standard immigration facility.

• Personnel Concerns: GTMO operations require highly trained personnel, including military and intelligence officers, who are not trained to handle mass civil immigration cases. This could lead to administrative failures, confusion, and poor treatment of detainees.

International Political Challenges

1. Diplomatic Fallout with Latin America

The U.S. relying on El Salvador as a detention site for deportees could create serious diplomatic tensions. Historically, Latin American countries resent U.S. interventionist policies, and outsourcing immigration detention to El Salvador could be viewed as an attempt to offload America’s immigration burden onto poorer nations.

• El Salvador’s Sovereignty Concerns: The Salvadoran government may face domestic political backlash for agreeing to detain U.S. deportees, with critics arguing that the country is being paid to do America’s dirty work.

• Mexico’s Reaction: Mexico will likely view the plan as a continuation of the Trump-era strategy of externalizing immigration enforcement, potentially straining U.S.-Mexico relations.

• Regional Instability: Many deportees to El Salvador will have criminal backgrounds or be affiliated with gangs like MS-13, raising security concerns about potential violence and instability within Salvadoran borders.

2. United Nations and Human Rights Scrutiny

The UN Human Rights Council (UNHRC), the Inter-American Commission on Human Rights (IACHR), and Amnesty International will strongly condemn both the GTMO migrant detention plan and the El Salvador deportation agreement. The key criticisms will be:

• Violation of Non-Refoulement Protections: International law prohibits returning migrants to countries where they face torture, persecution, or inhumane conditions. If El Salvador fails to properly vet deportees, the U.S. could be accused of violating the Convention Against Torture (CAT) and 1951 Refugee Convention.

• Arbitrary Detention & Lack of Due Process: Human rights organizations will argue that migrants at GTMO are being detained indefinitely without proper legal protections, calling it a violation of the International Covenant on Civil and Political Rights (ICCPR).

• Potential Legal Challenges in International Courts: While the U.S. is not subject to direct UN legal enforcement, advocacy groups may push cases in international human rights courts to challenge GTMO and El Salvador detention as human rights abuses.

3. European & Allied Government Backlash

• European Union: The EU, particularly countries like Germany, France, and Spain, will condemn the policy and potentially push for diplomatic consequences. Given past EU criticism of U.S. immigration detention practices, this will likely create further strain on transatlantic relations.

• Canada & Other Allies: Canada has long supported strong refugee protections, and the GTMO plan could become a sticking point in U.S.-Canada relations. Other allies, including Australia and the UK, may also face domestic pressure to condemn U.S. immigration practices.

(Another quick aside—the President pulling the U.S. out of the UN Human Rights Council (UNHRC) didn’t exactly help our case here. It’s hardly a coincidence that after ditching the HRC, the administration is now shipping detainees to GTMO and outsourcing detention to El Salvador.

At this point, I wouldn’t be surprised if, at the next UN General Assembly, Trump took the podium, looked out at the assembled world leaders, and declared, “I don’t give a flying f*ck what any of you people think!” before storming off the stage.)

Potential Fallout Scenarios

1. Mass Protests & Political Mobilization

• Expect mass protests in major U.S. cities, with advocacy groups organizing large demonstrations against GTMO migrant detention.

• International human rights organizations will push for economic and diplomatic sanctions against the U.S.

• Sanctuary states like California and New York may refuse cooperation, challenging federal immigration enforcement through lawsuits and local policies.

2. Detainee Protests & Hunger Strikes

• GTMO detainees could launch hunger strikes, drawing negative media attention and comparisons to past controversies over detainee treatment.

• El Salvadoran detention conditions may deteriorate, leading to increased crime, prison riots, or cartel violence linked to deported migrants.

3. Long-Term Legal & Political Consequences

• The GTMO and El Salvador plans could become major campaign issues in future elections, with opponents citing human rights violations.

• Due to sustained political pressure, future administrations may be forced to (and undoubtedly will want to) shut down the program.

• If abuses occur, they could lead to future congressional investigations into the treatment of detainees, especially if the partisan balance flips. If the abuses are genuinely severe, they could lead to a third impeachment.

While the legal framework allows GTMO migrant detention and offshore deportations to El Salvador, the political challenges are immense. Domestically, the policy will be controversial, logistically challenging, and face intense scrutiny from Congress and the media. Internationally, it risks damaging relations with Latin America, provoking UN human rights condemnations, and straining alliances with key partners. Thus far, this Administration has shown little finesse and capability to manage routine casual world affairs, let alone what would become (most likely) the most galvanizing international issue since the last time the United States conducted large-scale detention operations at Guantanamo.

This brings us, of course, now to the most fierce battleground, the Courts.

The Supreme Court Will Likely Uphold

Given everything we’ve discussed, several key legal questions are likely to reach the Supreme Court regarding the detention of migrants at Guantanamo Bay (GTMO) and the transfer of deportees to El Salvador. These cases will center on executive authority, constitutional rights of non-citizens, international law obligations, and due process challenges.

I believe that this policy choice is inconsistent with American values, inconsistent with the spirit of our Constitutional protections, inconsistent with the spirit of our immigration law, and inconsistent with our obligations under international law, specifically the ICCPR and the CAT. That said, it is also my belief that, for the most part, the Supreme Court will uphold all of these actions, nearly unchecked, on virtually a partisan basis. Unfortunately, there are “colorable” arguments and case law (stare decisis) to provide ample justification for executing these policies. Let’s examine the questions likely to come before the Court in what I imagine will be a myriad of lawsuits.

1. Can the U.S. Government Detain Migrants at GTMO Indefinitely Without Granting Full Due Process Rights?

Legal Question:

Does detaining non-citizens at Guantanamo Bay circumvent the constitutional protections that would otherwise apply if they were held within U.S. territory?

Legal Analysis:

• Johnson v. Eisentrager (1950): The Supreme Court ruled that non-citizens detained outside of U.S. territory do not have constitutional rights, including habeas corpus protections. The government will argue that GTMO remains outside the jurisdiction of U.S. courts, meaning detainees do not have full due process rights.

• Rasul v. Bush (2004): The Court held that GTMO detainees can file habeas petitions because the U.S. exercises de facto sovereignty over GTMO, complicating the government’s position. However, this case applied specifically to wartime enemy combatants, not civil immigration detainees.

• Boumediene v. Bush (2008): Expanded habeas rights to detainees at GTMO, stating that the Constitution’s protections extend to non-citizens held there under certain conditions. However, the Court did not rule that all constitutional protections apply, leaving room for the government to argue that immigration detainees are distinct from enemy combatants.

Likely Supreme Court Ruling:

The 6-3 conservative majority will likely rule that immigration detainees at GTMO are not entitled to full constitutional protections, relying on Eisentrager and distinguishing Boumediene as applicable only to wartime combatants. However, Roberts and Gorsuch might insist on some minimal procedural safeguards, requiring some level of review.

2. Does Sending Detainees to El Salvador Violate the Non-Refoulement Principle Under U.S. and International Law?

Legal Question:

Does deporting migrants to El Salvador, where they may face danger or human rights violations, violate international treaty obligations such as the Convention Against Torture (CAT) and U.S. asylum law?

Legal Analysis:

• INS v. Cardoza-Fonseca (1987): Affirmed that U.S. law must adhere to international asylum obligations, including protection from deportation to countries where individuals may face persecution.

• Zadvydas v. Davis (2001): Ruled that indefinite detention is unconstitutional if deportation is not feasible, but did not specifically address deportation to third-party countries.

• Trump v. Hawaii (2018): Reaffirmed the President’s broad authority over immigration matters, suggesting that courts will be hesitant to interfere with deportation policies unless there is a clear statutory violation.

Likely Supreme Court Ruling:

The Court will likely defer to executive discretion and rule that the government has the authority to deport migrants to El Salvador unless the plaintiffs can prove immediate and specific harm upon return. The conservative justices (Thomas, Alito, Kavanaugh, Barrett) will argue that treaty obligations do not override executive discretion. In contrast, Sotomayor, Kagan, and Jackson will argue that the deportation agreement violates non-refoulement principles.

3. Do Immigration Detainees at GTMO Have a Right to Habeas Corpus or Access to U.S. Courts?

Legal Question:

Can non-citizen immigration detainees at GTMO challenge their detention through U.S. courts, or does the government have unchecked authority to hold them indefinitely?

Legal Analysis:

• Rasul v. Bush (2004): Established that GTMO detainees have the right to file habeas petitions in U.S. courts. However, this ruling applied to enemy combatants, not civil immigration detainees.

• Demore v. Kim (2003): Upheld the government’s authority to detain immigrants without bond hearings, reinforcing broad executive discretion.

• Jennings v. Rodriguez (2018): Held that immigration detainees do not have an automatic right to periodic bond hearings, suggesting that the Court may uphold prolonged detention for GTMO detainees as well.

Likely Supreme Court Ruling:

The Court will likely narrowly uphold the right of detainees to file habeas petitions but in a minimal scope. The conservative majority will likely rule that GTMO detainees have limited avenues for judicial review, effectively allowing indefinite detention under immigration enforcement powers.

How the Justices Are Likely to Rule on These Issues

Predicting how the Justices will decide hypothetical cases and questions is always speculation. That said, I’m going to “just that.” I’ve studied what these Justices have said in their confirmations and statements. I’ve studied what they’ve written in the past. I’ve presumed they won’t suddenly change their minds. I’ve also presumed that they won’t just radically depart from existing cases if those cases “get them where they want to go.” In other words, I’m not expecting a “Dobbs” moment where suddenly they just make it up out of the blue (which is how I interpret what happened in Dobbs.) There is a fair amount of case law to draw on, and given the proclivities of the “conservative” members to draw on originalism, textualism, etc., I feel we can make some “predictions” about how they might analyze the questions.

Chief Justice John Roberts (Swing Conservative)

• Will likely vote to uphold executive authority over immigration detention but may require some procedural safeguards, as he did in Boumediene v. Bush (2008).

• Will likely side with conservatives on deportation to El Salvador, citing Trump v. Hawaii.

Clarence Thomas (Hardline Conservative)

• Will unconditionally uphold the government’s authority, arguing that non-citizens outside U.S. soil have no constitutional rights (Eisentrager).

• Will reject any due process claims, siding with executive power 100%.

Samuel Alito (Conservative, Strong National Security Leanings)

• Will rule against any expansion of rights for GTMO detainees, relying on Trump v. Hawaii and Demore v. Kim.

• Will likely dismiss non-refoulement arguments, arguing that treaties do not override statutory law.

Neil Gorsuch (Libertarian at times, Skeptical of Indefinite Detention)

• May support some limited procedural protections for detainees at GTMO.

• Will likely join conservatives on deportation to El Salvador, deferring to plenary power doctrine.

Brett Kavanaugh (Broad Deference to Executive Authority)

• Will side with the government on all issues, emphasizing Trump v. Hawaii.

• Will likely argue that national security concerns justify expanded detention policies.

Amy Coney Barrett (Strict Textualist)

• Will rule against granting constitutional protections to non-citizens at GTMO, relying on Eisentrager and Demore.

• Will likely uphold deportation to El Salvador, arguing that immigration law gives the executive full discretion.

Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson (Liberal Wing)

• Will dissent in every case, arguing that immigration detainees deserve due process and habeas rights.

• Will oppose deportations to El Salvador on human rights and non-refoulement grounds.

Final Prediction

So, what’s the “box score” then?

• GTMO Immigration Detention Will Be Upheld (6-3 Decision)

• Deportations to El Salvador Will Be Upheld (6-3 Decision)

• Limited Habeas Rights for GTMO Detainees Will Be Allowed, But Heavily Restricted (5-4 Decision, with Roberts/Gorsuch possibly carving out narrow review rights)

The current Supreme Court composition heavily favors executive authority in immigration matters, meaning these policies are likely to be upheld with minimal judicial interference.

Conclusion: The Supreme Court Will Greenlight the Madness—And There’s No One to Stop It

After a thorough analysis of the legal, political, and constitutional landscape, the most sobering conclusion is this: the Supreme Court will almost certainly uphold every major aspect of Trump’s GTMO and El Salvador immigration detention policy. Whether it is morally indefensible, practically unworkable, or diplomatically catastrophic is irrelevant to the legal calculus this Court will apply.

Every major legal argument against these policies—due process concerns, non-refoulement treaty violations, the inhumane treatment of detainees, and the dangers of indefinite detention—will be brushed aside in favor of the President’s broad authority over immigration and national security.

If we’ve learned anything from Trump v. Hawaii (2018), Demore v. Kim (2003), and Boumediene v. Bush (2008), it’s that the Supreme Court is more than willing to defer to the Executive Branch on immigration and detention matters. That deferential posture will define how these cases are decided.

There is a slim chance that Chief Justice Roberts and Justice Gorsuch could carve out a procedural safeguard here or there, but ultimately, the conservative supermajority will rule that the President has the power to detain non-citizens offshore, limit their legal rights, and remove them to a third country, regardless of human rights concerns.

This means that thousands of migrants could be detained indefinitely at Guantanamo Bay with virtually no recourse, and thousands more could be sent to El Salvador, where their fate is out of American hands.

This is a troubling moment for those who value the Constitution’s promise of due process, the integrity of human rights, and the rule of law. But if the last few years have taught us anything, it’s that the Supreme Court is no longer a neutral arbiter of constitutional principles—it is a political body, and in this case, the politics favor Trump’s authoritarian immigration crackdown.

In the end, this is not a legal fight that will be won in the courts. If this policy is to be stopped, it must be through political pressure, international backlash, and sheer logistical incompetence. Because legally, the path is clear: the Supreme Court is prepared to rubber-stamp this madness, and there’s no one left to stop them.