One dimension of the current case of Kilmar Abrego Garcia concerns the dark side of globalization: arbitrage by authoritarians to subvert constitutional and human rights protections.
Abrego Garcia has been strategically disenfranchised through jurisdictional arbitrage implemented by physical transfer to El Salvador. If he remained in the U.S., he would have had important due process rights and would be entitled to better treatment and perhaps release. But the U.S. now claims that it has no jurisdiction/power to correct its error and bring him back, and rejects judicial interference with its foreign policy powers on constitutional allocation of powers grounds. For El Salvador’s part, President Bukele says he has no power to return Abrego Garcia to the U.S. With power comes responsibility: the disavowal of power by the U.S. and El Salvador is a disavowal of responsibility resulting in the stripping of rights from Abrego Garcia. Furthermore, the Abrego Garcia case is a test case for a broader strategy that can be applied to all residents and citizens. President Trump has stated that it might be applied to “home grown” criminals. This would nullify constitutional rights of citizens.
The Trump administration is asserting the power wantonly to physically move people in order to subvert their constitutional rights. MNCs have long moved physically or notionally to seek legal treatment more favorable to them. The Trump administration’s innovation here is to utilize the power of government arbitrarily to move people in order to accord legal treatment less favorable to them. Effective constitutional and human rights will require constraints on this power, either in national law or In international law. As Jeffrey Dunoff and I explained in our 2013 volume, Ruling the World, “Constitutional subsidiarity implies that under some changes in technological or social circumstances, the vertical level at which it is appropriate to guarantee certain constitutional values may change. Supplemental constitutionalization responds to gaps in the domestic law constitutional framework that are created or accentuated by globalization.”
