No, Trump can't legally send Americans to prison in El Salvador
John D. Bessler is a law professor at the University of Baltimore School of Law, an adjunct professor at the Georgetown University Law Center and a visiting scholar at the University of Minnesota Law School's Human Rights Center.
President Donald Trump has suggested sending U.S. citizens convicted of crimes to prison in El Salvador, outside the reach of the U.S. legal system. 'The homegrowns are next,' Trump said during a meeting with El Salvador's president, Nayib Bukele, adding he'd 'have to build five more places' to hold the prospective inmates.
The Eighth Amendment's ban on cruel and unusual punishment prohibits this course of action. White House lawyers should read the U.S. Supreme Court's landmark decision in Trop v. Dulles. The court barred the government from rendering U.S. citizens stateless, which is similar to what Trump is threatening to do if Americans are imprisoned abroad.
During World War II, Albert Trop, an American citizen, was serving as a U.S. Army private in Morocco. He escaped a stockade and was taken into custody the next day and court-martialed. Convicted of desertion, he was sentenced to three years of hard labor, forfeiture of pay and a dishonorable discharge. When Trop applied in 1952 for a passport, his application was denied on the ground that, under the Nationality Act of 1940, he had lost his U.S. citizenship by virtue of his conviction.
In Trop, the Supreme Court held that denationalization as a punishment is a violation of the cruel and unusual punishments clause of the Eighth Amendment. 'It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development,' the court concluded. 'In short, the expatriate has lost the right to have rights.'
The Trop case makes clear that any effort to incarcerate U.S. citizens abroad would be an Eighth Amendment violation. Were that to happen, people would — as a practical matter — be deprived of their fundamental constitutional rights. They would be at the mercy of a foreign legal system or, worse yet, a dictator's arbitrary whims. Bukele called himself 'the world's coolest dictator,' and El Salvador operates the notorious Terrorism Confinement Center, known as CECOT. Any American held abroad — as Chief Justice Earl Warren pointed out in Trop — would be 'at the sufferance of the country in which he happens to find himself.'
'Banishment,' Warren concluded, is 'a fate universally decried by civilized people.'
As just one example, the Eighth Amendment protects against horrendous conditions of confinement. But how would someone in a foreign prison meaningfully assert an Eighth Amendment violation from a cell controlled by another sovereign country?
The case of Kilmar Abrego García, an immigrant and longtime Maryland resident who the Trump administration admitted in court was sent in error to El Salvador, illustrates the threat. The Supreme Court ordered the administration to facilitate García's return, but it has resisted taking action. Judge J. Harvie Wilkinson III — a Reagan appointee — warned in his Fourth Circuit order on April 17 that 'the government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.'
The government's claim that nothing can be done for García now that he's out of U.S. custody, Wilkinson observed, 'should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.'
'If today the Executive claims the right to deport without due process and in disregard of court orders,' Wilkinson wrote, 'what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?'
Trump has said he'll only send Americans convicted of crimes abroad if it is legal. The Supreme Court has made clear it is not. We should hope Wilkinson is right, 'that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.'
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The move could add more uncertainty for American manufacturers, particularly the auto industry, which has been pushing for easier access. The Journal notes that the move gives China leverage down the line if tensions ratchet back up. From the report: In celebrating the agreement early Wednesday, President Trump noted "any necessary rare earths will be supplied, up front, by China." He did not mention any time limit on loosening those restrictions. Treasury Secretary Scott Bessent, in testimony before Congress on Wednesday, painted Wednesday's agreement as an incremental step on the longer road to a more comprehensive trade deal. "A trade deal today or last night was for a specific goal, and it will be a much longer process," he told a House committee. When asked if current US tariff levels on Chinese imports would not change again, Commerce Secretary Howard Lutnick told CNBC, "You can definitely say that." "We're in a great place with China," Lutnick said Wednesday. While the US-China truce framework is awaiting final word from US President Trump and Chinese President Xi Jinping, Lutnick added, "Both sides are really positive." The agreement is largely viewed as reestablishing the "handshake" that US and Chinese officials reached in Geneva last month, as details on a larger trade pact remain scant. Trump posted on social media this morning that the US has imposed 55% tariffs on China, a number that does not include any new tariffs but instead comprises some preexisting tariffs, Trump's fentanyl tariffs, and 10% "Liberation Day" tariffs. Lutnick touted that, as a result of the two-day talks, the US will gain access to rare earths and magnets, while the Chinese delegation sought to remove the US's export controls. He added that the trade deficit remains an ongoing issue, stating, "We're going to examine how China can do more business with us." May's Consumer Price Index (CPI) report showed inflation pressures eased on a monthly basis despite investor concerns that President Trump's tariffs would accelerate the pace of price increases. The Consumer Price Index (CPI) increased 0.1% on a monthly basis in May and 2.4% on an annual basis, a slight uptick from April's 2.3% gain. Yahoo Finance's Allie Canal reports: Read more here. I would keep an eye on consumer names off the news of a trade deal with China floated by President Trump this morning (see our prior post below). Seeing upticks premarket in heavily China-exposed retailers such as Nike (NKE), Walmart (WMT), Target (TGT), and Abercrombie & Fitch (ANF). The premarket gains here aren't mind-blowing in part because tariffs appear to still be in place. Trump posted on Truth Social: OUR DEAL WITH CHINA IS DONE, SUBJECT TO FINAL APPROVAL WITH PRESIDENT XI AND ME. FULL MAGNETS, AND ANY NECESSARY RARE EARTHS, WILL BE SUPPLIED, UP FRONT, BY CHINA. LIKEWISE, WE WILL PROVIDE TO CHINA WHAT WAS AGREED TO, INCLUDING CHINESE STUDENTS USING OUR COLLEGES AND UNIVERSITIES (WHICH HAS ALWAYS BEEN GOOD WITH ME!). WE ARE GETTING A TOTAL OF 55% TARIFFS, CHINA IS GETTING 10%. RELATIONSHIP IS EXCELLENT! THANK YOU FOR YOUR ATTENTION TO THIS MATTER!" A variety of market observers quickly weighed in hours after Tuesday evening's unveiling to suggest that the deal may not have a lot of meat on the bones — but at least relations are no longer moving in the wrong direction. The talks perhaps underscored how unlikely a comprehensive trade deal is anytime soon, noted AGF Investments Greg Valliere, "but at least relations may not worsen as talks continue throughout the summer." Both sides promised additional talks in the weeks or months ahead, but none have yet been scheduled. Veronique de Rugy, a professor at the Mercatus Center at George Mason University, suggested the talks continued to show China's leverage. "China is hurting, yes—but they still hold the upper hand on critical resources, and they know how to use them." Any lessening of tensions — and freer flow — of these mineral resources in China would be a significant boost to the global economy with China holding outsized leverage in both the reserves and processing capacity of these key building blocks for everything from computers to electric vehicle batteries to medical devices. Likewise, the US offering concessions on export controls would be a significant move after years where successive US administrations have wielded these controls — especially around the design and manufacture of semiconductors — by saying they need to be tight on China for national security reasons. Read more here. May's Consumer Price Index (CPI) report will be released on Wednesday and its expected to show that prices rose a bit faster than in April. Yahoo Finance's Allie Canal breaks down what to look out for and how President Trump's tariffs are impacting what consumers are now paying for goods and services. Read more here. Now that the US-China trade truce is back on track, both sides are keen to ensure it stays that way. China's Vice Premier He Lifeng said both sides need to now 'show the spirit of good faith in abiding by their commitments and jointly safeguard the hard-won results of the dialogue.' Bloomberg News reports: Read more here. Reuters reports: Read more here. Despite the US-China trade truce resuming the pain from President Trump's tariffs remains in China, especially among small exporters. Reuters reports: Read more here. Japan warned Wednesday that tariffs threaten its economic growth, the government said in a monthly report. Reuters reports: Read more here. Reuters reports: Read more here. Reuters reports: Read more here. A federal appeals could said on Tuesday that President Trump's sweeping tariffs can continue for now. This is a significant win for Trump, who introduced tariffs back in March and declared "Liberation Day," as he saw them as a way to free the US from what he called unfair trade practices. Bloomberg News reports: Read more here. Early summer sales for Inditex, the owner of fashion retailer Zara, came in weaker, as the company missed expectations for first quarter sales on Wednesday. President Trump's tariffs have impacted consumer demand in the US and other major markets. Reuters reports: Read more here. After weeks of back and forth, the US and China have agreed on a framework to implement the Geneva consensus that helped ease tariffs. The breakthrough came after two days of talks in London, including a marathon session on Tuesday. US Commerce Secretary Howard Lutnick said both sides had to "get the negativity out" before making progress. 'Now we can go forward to try to do positive trade, growing trade,' he said. As part of the deal, Beijing has promised to speed up shipments of rare earth metals, a crucial component for global auto and defense industries. Washington will ease export controls. This marks the first sign of movement on key issues. The proposal will now be presented to President Trump and China's Xi. Still, the discussions also did little to resolve a long-standing issue: China's trade surplus with the US. 'Markets will likely welcome the shift from confrontation to coordination,' said Charu Chanana, chief investment strategist at Saxo Markets. 'We're not out of the woods yet — it's up to Trump and Xi to approve and enforce the deal.' The meeting was set up after a phone call between the two leaders, following weeks of each side accusing the other of breaking the Geneva commitments. Both countries had used chips, rare earths, student visas and ethane as bargaining tools. Josef Gregory Mahoney, a professor at East China Normal University, said trust, not money, has been the biggest casualty of the trade war. 'We've heard a lot about frameworks,' he said. 'But the fundamental issue remains: Chips versus rare earths. Everything else is a peacock dance.' Bloomberg reports: Read more here. Sign in to access your portfolio
