The US Executive vs Supreme Court Deportations Clash
Forecaster perspectives
Sentinel forecasters in aggregate assess as “83% true” (65% to 100%) the statement that the Trump administration has disobeyed the Supreme Court so far. On the one hand, the Trump administration has done nothing to “facilitate” bringing Abrego García back to the US, and this White House’s tweet shown below clearly indicates that it won’t try to; on the other hand, it could yet still do so when the current news cycle subsides. On April 17th, forecasters estimated a 66% chance (50% to ~100%) that Abrego García will not be brought back to the US within the next 60 days (by June 17).
Data on the number of deportations in past administrations are available but can be difficult to compare between administrations; some up-to-date sources include refusals at the border due to Covid (“Title 42 expulsions”) under Biden, but other data have been discontinued. Perhaps a good comparison might be to the years 2012-2015, Obama’s second term, which saw a total of about 1.5M immigrants removed over all four years. The Trump administration has reportedly set a goal of removing 1M people in its first year. As of April 19, 3.6 months into Trump’s second term, the administration has deported 0.11M people. Removing 1M people by the end of 2025 would require a removal rate that is almost four times higher than the rate to date.
Our forecasters estimate a 32% (range, 15% to 70%) probability that the Trump administration will deport over 1M immigrants this calendar year. The administration has the intent, but obstacles include the courts, logistics, incompetence, and possible protection in sanctuary cities, although protection of immigrants by cities could lead to standoffs between local and federal officials. ICE’s recently granted access to IRS data on undocumented immigrants would likely make deportations easier. Paradoxically, those who pay taxes and have tried to work within the system are likely to be at greatest risk of deportation. DOGE personnel are also reportedly constructing a database linking Department of Homeland Security, Social Security Administration and IRS data on undocumented immigrants together, to facilitate deportations. If the Trump administration does deport at least 1M immigrants this year, then we think there will likely be a false positive rate of 0.3% to 5% regarding people mistakenly deported.
Our forecasters estimate a 14% (range, 10% to 25%) probability that Trump will invoke the Insurrection Act by July 1st, and a 22% (12% to 50%) probability that he will do so by the end of 2025. They were previously much higher, but were moved down by this CNN article that for now the Pentagon and DHS recommend against invoking the Act.
Summary of events
Starting in March The Trump administration deported over 200 immigrants they allege to be gang members and terrorists to a supermax prison in El Salvador. None of the men were given due process.
The Abrego García US Supreme Court case.
One case already reached the Supreme Court, which, on April 10th, ruled as follows in a 9-0 decision:
> The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an “administrative error.” The United States alleges, however, that Abrego Garcia has been found to be a member of the gang MS–13, a designated foreign terrorist organization, and that his return to the United States would pose a threat to the public. Abrego Garcia responds that he is not a member of MS–13, and that he has lived safely in the United States with his family for a decade and has never been charged with a crime.
> The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. The order heretofore entered by THE CHIEF JUSTICE is vacated.
The rest of the order contains a much more harshly worded statement from Sotomayor, Kagan and Jackson, the court’s liberal judges.
Developments since the Abrego García Supreme Court case
The administration argued in court filings on April 13 that it is not obligated to help Abrego Garcia return to the US, and that it is only obligated to "remove any domestic obstacles that would otherwise impede the alien's ability to return here. On April 14, Homeland Security Advisor Stephen Miller said "How are you going to expel illegal invaders from our country [...] if each and every deportation has to be adjudicated in [sic] a district court judge?"
In a meeting with Trump in the White House on April 15, El Salvador President Bukele told reporters that, "I don't have the power to return him to the United States." In the same White House meeting, when Trump asked Miller about the Supreme Court ruling, Miller stated, "it was a 9-0 in our favor," and argued that the administration could not be "compelled by anybody" to bring Abrego Garcia back.
This leaves the administration and the Supreme Court at an impasse. Bukele could release Abrego Garcia to the US, and the US could bring him back, if the administration wanted to do so. As a point of reference, the US has routinely negotiated for the return or release of citizens and even of non-citizens considered at risk in other countries. But on April 18, the White House tweeted the following:
For now, the Supreme Court has put a stop to further deportations to El Salvador. Last Friday, buses full of Venezuelans being transported to an airport in Texas by ICE turned around after the Supreme Court issued an order in the middle of the night that blocked all further deportations of alleged Venezuelan gang members under the Alien Enemies Act. The Supreme Court’s order states, “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.”
Next steps for the court case
US District Judge Paula Xinis, who originally ordered the administration to return Abrego Garcia to the US and has requested daily updates, could hold members of the administration in contempt. A contempt of court recommendation by a judge in federal court would be “handled by the Department of Justice, which has the power to decide which cases it pursues, making it highly unlikely the Trump administration will choose to criminally charge its own officials.” On the other hand, judges could hold defendants in civil contempt, or appoint a private lawyer to prosecute the charge. President Trump could pardon a conviction. An unknown is if there is a point down this path where enough Republicans in Congress would attempt to force the administration to obey the courts.
Cases could also be returned to the Supreme Court, which itself also has few powers of enforcement—though in the case of a firm Supreme Court decision against the administration which is then disobeyed, Congress might impeach Trump. Republicans could face landslide losses in the 2026 midterm elections, the prospect or the eventuality of which could cause Republicans to change course.
If the administration finds a way not to be curtailed by court orders, this sets a precedent that they can deport immigrants without due process, and generally establishes the pre-eminence of executive over judicial authority when it comes to deportations, at least in practice.
Plans for further deportations
The Trump administration is taking actions that show that it would like to deport potentially millions of undocumented immigrants. This month, a data-sharing agreement was signed that gives ICE access to the contact information of up to 7 million undocumented immigrants in IRS taxpayer data. DOGE is also creating a database on undocumented immigrants that combines data from the Department of Homeland Security, the Social Security Administration, and the IRS, and Palantir has won a contract to build a software tool for ICE to facilitate deportations as well. This month, ICE put out a request for proposals to build massive detention facilities for up to $45 billion, and a music-festival tent-housing company that has built facilities for ICE may end up building more. Former Blackwater CEO Erik Prince and other contractors have submitted a proposal to the administration to deport thousands of immigrants from US detention facilities to the maximum-security prison in El Salvador where Abrego Garcia and other deportees are being held.
US citizens are also under threat of deportation. During Trump's White House meeting with Bukele on April 14, Trump told Bukele that, "homegrowns are next. The homegrowns. You gotta build about five more places. ... It's not big enough." A reporter asked Trump, "You mentioned that you're open to deporting individuals that aren't foreign aliens, but are criminals, to El Salvador, does that include potentially US citizens, fully naturalized?" Trump replied, "If they're criminals, and if they hit people with baseball bats over the head that happen to be 90 years old, if, uh, if they rape 87-year-old women in Coney Island, Brooklyn, yeah, yeah, that includes them. Why, you think they're [a] special category of person? They're as bad as anybody that comes in."
The Insurrection Act
On January 20th, Trump declared a national emergency on the southern US border. In that declaration, he set a deadline for receiving a recommendation on whether to invoke the Insurrection Act by April 20th:
> Within 90 days of the date of this proclamation, the Secretary of Defense and the Secretary of Homeland Security shall submit a joint report to the President about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.
The Insurrection Act gives the president the power to deploy the US military within the US under the President’s command, and to federalize the National Guards of the individual states. This would allow the Trump administration to deport more immigrants than is possible by ICE and CBP alone. Some on social media have confounded the Insurrection Act with martial law; invoking the Insurrection Act is completely different from declaring martial law.
CNN reported on Friday that Secretary of Defense Hegseth will not recommend invoking the Insurrection Act.
Implications and recommendations
As mentioned, forecasters believe the deportation of hundreds of thousands or millions of illegal immigrants is plausible. Conditions in the Salvadoran CECOT jail seem to be particularly bad, but it only has a capacity of 40K, although the Salvadoran government may build more such prisons.
For readers of this newsletter who are not US citizens, your position in the US seems more precarious, particularly if you politically oppose the administration on a high-profile political dispute, like Israel. Chances of withdrawing a green card or an already existing visa seem very small, while chances of being denied visas or renewals seem higher.
For US citizens who are particularly concerned and wealthy, it might be a good idea to get a residency or nationality in a second country, either through descent (e.g., Italian, German, British, etc.) or by briefly visiting a country like Uruguay, Mexico, Paraguay, Panama, etc.; this sometimes can be done through a few short visits rather than residing in a new country contiguously. We are also looking at what paranoid economic bets we could make for a worst-case scenario in the US.
For one forecaster, the most important danger gradually arises out of the potential invocation of the Insurrection Act. If he were to invoke it, Trump would have a force that is able to intervene in the US mainland. Commanders of that force might be selected for loyalty to Trump, and report directly to him. Eventually this could lead to a situation of permanent emergencies and a much greater expansion of presidential powers beyond Constitutional and congressional limits.
If the Trump administration disobeys a Supreme Court order, as it seems to be in the process of doing, the 2028 election could be much more contested if it falls into a Bush v. Gore scenario. For one forecaster, this is the most worrying outcome to watch out for.