MARY LOUISE KELLY, HOST:
The Trump administration's move to send immigrants to a maximum security prison in El Salvador is the subject of multiple ongoing fights in court. But in an Oval Office meeting with the Salvadoran president this week, President Trump was already looking ahead.
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PRESIDENT DONALD TRUMP: We also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they're not looking, that are absolute monsters. I'd like to include them in the group of people, to get them out of the country.
KELLY: Trump later clarified that by homegrown criminals he meant U.S. citizens, and he said his attorney general is looking into the legality of getting them out of the country.
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TRUMP: We - we're studying the laws right now. Pam is studying. If we can do that, that's good.
KELLY: Matt Ford has been studying them, too. He covers the courts for The New Republic magazine and has a new piece looking for historical and legal precedents for what Trump is proposing. Matt Ford, welcome.
MATT FORD: Thanks for having me.
KELLY: I want to start with the headline for your piece, which reads, "Trump's Wildly Unconstitutional Plot To Banish U.S. Citizens To Gulags" - wildly unconstitutional?
FORD: Well, when we speak of things that are constitutional and unconstitutional, it's not always a bright line. Some of the parts of the Constitution are up for interpretation. You know, what is cruel and unusual punishment? What is due process? What is a reasonable search and seizure? Banishment and exile, on the other hand, there really is no basis for that in the Constitution or in any federal law.
KELLY: As you reported this out, as you called around to various legal experts, you found no one who could see any basis for this in the Constitution?
FORD: Well, it's tough because, you know, on one hand, the courts have never really ruled on it. That's what makes it so striking and...
KELLY: Because nobody's tried it.
FORD: Nobody's done it. And so, you know, I can't find a Supreme Court opinion. I can't point one to you and cite one where the justices 50 or 100 years ago said banishment is unconstitutional, exile is unconstitutional. But when you look at the grand scope of how the courts think about deportation, extradition, citizenship, it's pretty clear that it would be a disfavored practice. And we know that also from American history.
KELLY: I want to play one other moment from that Oval Office meeting. This is when President Trump is asked explicitly if he's talking about U.S. citizens.
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TRUMP: Yeah. Yeah. That includes them. Why? Do you think there's special category of person? They're as bad as anybody that comes in. We have bad ones, too.
KELLY: Matt Ford, are U.S. citizens a special category of person under U.S. law?
FORD: Constitutionally speaking, in many ways, they are. I mean, American citizens are the only ones who can vote. They're the only ones who can serve on juries, and they have a automatic right to live in this country. The general practice is they can't be denied reentry if they leave, which is sort of a constitutional barrier in and of itself to the idea that they would be exiled to a distant land.
KELLY: Yeah. There are ways that a U.S. government can legally remove people from the country. There's deportation - that applies to noncitizens - extradition.
FORD: Yeah, extradition stands out to me as the one truly legal pathway that this could happen. It's very rare, but it does happen. Basically, the premise is the United States signs a treaty with another country. That sets up the framework. Courts then say, you know, you can't deport an American citizen unless there's an explicit requirement in the treaty to do that. The other state has to match U.S. levels of due process, basic rights. So you can't simply send someone to North Korea.
I think those would be an impediment against anything Trump is planning for El Salvador, partly because El Salvador does not appear to meet those levels, partly because the 1911 treaty we have with El Salvador is not considered to be legally sufficient at this moment and also, I think significantly enough, because none of the people that Trump seems to be envisioning have committed any crimes in El Salvador. The purpose of extradition is to allow somebody to be tried in another country. In the audio earlier, Trump is describing people who've committed crimes solely in the United States. So I don't think that's a viable pathway for anything that Trump is envisioning here.
KELLY: I suppose one way around the constitutional protection for U.S. citizens is to take away that citizenship - to denaturalize them. You have found examples of the government trying this in the past.
FORD: Sure. And up until about the 1960s, it wasn't axiomatic that citizenship was irrevocable. There was a case in 1922 where a group of Chinese Americans went overseas, returned to the United States. They were denied reentry, and the Supreme Court ruled that they had a right to have a tribunal - a hearing - where they could prove that they were citizens, the premise being that if they were citizens, they couldn't be denied reentry. We also know from a case in the 1950s where a man was stripped of his citizenship for draft dodging. He was then put through deportation proceedings. The court struck down that provision of the Immigration Nationality Act that denaturalized him. And they since said in the 1963 case Afroyim v. Rusk that citizenship is more or less irrevocable unless done voluntarily. The sole exception for that is for naturalized citizens who lie during the immigration process. But even then, the Supreme Court has set an extremely high threshold for that proceeding to be carried out.
KELLY: And so what changed in the 1960s?
FORD: Well, it's part of the sort of the war on courts reforms, but it's also part of a general recognition of the value of American citizenship and the rights that come with it. You know, when the court speaks of citizenship, they speak of it as almost sacrosanct, as something that defines a person's place in the world, defines their ability to participate in a political community, defines their ability to have a home. And so I think that the idea that somebody could be exiled from the United States while being a U.S. citizen cuts against that in the deepest way possible.
KELLY: This brings us to the question of whether the Trump administration won't do it anyway, even if sending U.S. citizens to El Salvador or somewhere else is clearly illegal, unconstitutional. I'm thinking of the case currently in the headlines of Kilmar Abrego Garcia being held in El Salvador. Multiple Trump administration officials have said he was sent there by mistake. He is not a U.S. citizen, but he had been granted protection from deportation by an immigration judge.
FORD: Right. And he has a right to due process that was not followed there. One of the reasons that I wanted to explore this question and write this piece was because when we talk about things that presidents do, it's important to set context about where that falls on a constitutional spectrum. Presidents do things every day that are perfectly lawful, perfectly constitutional, even if people disagree with them. Presidents from both parties have done things that are in a little more of a gray zone. Maybe they're reinterpreting authority, maybe they are applying it in a new scenario, maybe they are using law in a way Congress didn't intend. That's normal and to be expected.
This is not one of those scenarios. This is a scenario where there is no - that I've been able to find - legal or constitutional basis for the idea that you would send someone outside their country of citizenship, outside their country of birth, their nationality - send them to a foreign country that will then hold them indefinitely and deny them the opportunity to return. I can't rule out the possibility that the Trump administration will do it anyways, but I think it's important to set the marker now that there doesn't appear to be any legal or constitutional basis for those actions.
KELLY: Matt Ford, staff writer at The New Republic, talking about his new piece, "Trump's Wildly Unconstitutional Plot To Banish U.S. Citizens To Gulags." Matt Ford, thank you.
FORD: Thank you for having me. Transcript provided by NPR, Copyright NPR.
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