Every once in a while, a judicial decision is so beautifully written and so well crafted that it should be read in full, not summarized.
Such a decision was rendered yesterday by Judge J. Harvie Wilkinson of the Fourth District Court of Appeals in the case of Kilmer Abrega Garcia. Judge Wilkinson was appointed to the Fourth Circuit Court of Appeals by President Reagan in 1984. He is an old-school Republican who believes in the U.S. Constitution and the rule of law. Remember them? People like Liz Cheney and Adam Kinzinger, who are reviled by MAGA. To MAGA, whatever Trump wants overrides both the Constitution and the rule of law.
Abrego Garcia is one of the 238 men picked up by ICE and whisked away to a terrorism prison in El Salvador. None of those men had a hearing or due process. A district court judge (appointed by President George W. Bush) ordered the government to turn the flights around and bring the men in three planes back to U.S. soil. The administration ignored his ruling. Another federal district judge ordered the Justice Department to bring him back. However, the Trump Justice Department insists that the U.S. has no jurisdiction in El Salvador.
His case and plight have sparked nationwide demonstrations against the government for failing to provide him due process and refusing to bring him back despite the orders of two federal district judges and the U.S. Supreme Court, which ruled 9-0 that the government must “facilitate” his return while showing due deference to the President’s control of foreign affairs.
Here is the full decision. It is not long (seven pages) and it is great reading.
If you want to read its crucial reasoning (without the legal precedents referenced), here is the core of the decision:
“Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature.
While we fully respect the executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision. It is difficult, in some cases, to get to the very heart of the matter—but in this case, it is not hard at all.
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. Further, it claims, in essence, that because it has rid itself of custody, that there is nothing that can be done. This should be shocking not only to judges but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps. Perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that that position will prevail in proceedings to terminate the withholding of removal order. In other words, if it thinks it’s got such good factual proof of that, what is it so worried about? It can present it, and it should prevail in getting him removed from this country.
Moreover, the government has conceded that Abrego Garcia was wrongfully or mistakenly deported. Why then should it not make what was wrong right?
Let me just repeat that. Why then should it not make what was wrong right?
The Supreme Court’s decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give due regard for the deference owed to the executive branch.
The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It 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.’
Facilitate is an active verb. It requires that steps be taken—as the Supreme Court has made perfectly clear. The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art.
We are not bound in this context by a definition crafted by administrative agency and contained in mere policy directive.
Thus, the government’s argument that all it must do is remove any domestic barriers to his return—that is, the government said, ‘You know what? If he can make his way to our shores, then we have to take him in’—is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.
“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prison that the withholding order forbids, and further to do so in disregard of a court order that the government, not so subtly, spurns. Facilitation does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would facilitate foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood….”
The executive possesses enormous powers to prosecute and to deport. But with powers come restraints. If today the executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies? That threat—even if not the actuality—would always be present.
And the executive’s obligation to ‘take care that the laws be faithfully executed’—that’s a quote from the Constitution, Article II—would lose its meaning.
Today, both the United States and the El Salvadoran government disclaim any authority and/or responsibility to return Abrego Garcia. We are told that neither government has the power to act. That result will be to leave matters generally—and Abrego Garcia specifically—in an interminable limbo without recourse to law of any sort.
The basic differences between the branches mandate a serious effort and mutual respect. The respect that courts must accord the executive must be reciprocated by the executive’s respect for the courts.
Too often today, this has not been the case—as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate.”
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.”
This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of thedecisions of the Federal Courts.” Indeed, in our late Executive’s own words,“ [u]nless the President did so, anarchy would result.”
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragicgap between what was and all that might have been, and law in time will sign its epitaph.
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope 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. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
The most ominous words in this decision are the last five. “…While there is still time.”
This respected conservative jurist recognizes that the goal of the Trump administration is to diminish and undermine the federal courts and to make himself an emperor.