I discuss tonight the remarkable Fourth Circuit decision denying the government’s appeal in the Abrego-Garcia case. The decision, penned by a Republican jurist appointed by President Reagan, is one for the ages. I read the key passages—you will not regret listening. (A link to the full decision can be found here.)
–Andrew
TRANSCRIPT
Hi, folks. I was on Nicole Wallace’s show Deadline: White House, and we had a chance to talk about—and read some of—a remarkable decision that came out today.
This is a decision by the Fourth Circuit. The government had sought to take what’s called a writ of mandamus. It’s a form of appeal in an emergency situation. It’s very hard to get a writ of mandamus granted, but they were trying to mandamus the district judge in the Abrego Garcia case, saying that she should not be continuing to do discovery and try to get compliance with the Supreme Court order that said the government has to facilitate the return of Mr. Abrego Garcia.
They didn’t like her rulings, so they sought mandamus. They filed their papers—and before Abrego Garcia could even issue his response—the court unanimously ruled 3-0 and issued a remarkable decision. It is by Judge Wilkinson. He is a Reagan appointee. He is known to be a conservative jurist.
I’m going to read to you—I’m going to do my best Rachel Maddow impression—because it is remarkable language. And the bottom line up front is: he is saying that the government is really undermining the rule of law, and it needs to turn back before it’s too late.
This is from the decision from Judge Wilkinson. You can also go to my Substack where I have a link to the actual decision if you want to read it. I’m not going to read some of the more law-heavy points. It’s not all that long, so I promise you it’s worth it. Even if he’s not wild about me, I think you’ll really enjoy hearing what he has to say. It gives such a sense that we are in a dire, dark moment in this country. It’s not just people saying, “The sky is falling, the sky is falling.” It is coming from the court. It is coming from this particular jurist.
“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.”
I’m going to move on.
“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.”
Then there is a citation to President Eisenhower’s sage example, where he followed a court decision with all deliberate speed. He said:
“The very basis of our individual rights and freedoms is the certainty that the President and the executive branch of government will support and ensure the carrying out of the decisions of the federal courts.”
That was the court quoting President Eisenhower.
President Eisenhower obviously made his name—and is a hero—because of his role during World War II. And I still have in my mind the images of him when he and his troops discovered and visited the concentration camps. So he is very aware of what an unrestrained executive can do.
Indeed, in our late executive’s own words:
“Unless the President did so, anarchy would result.”
Now the branches—the branches of government—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 dint of custom and detachment, we could only sparingly reply. The executive will lose much from a public perception of its lawlessness and all its attendant contagions. The executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been—and law and 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 naive 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.
“In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case. It is so ordered.”
That is quite the clarion call.
It remains to be seen what the administration is going to do—whether it will comply now with the district judge’s order, whether they will seek to go to the Supreme Court yet again, whether they might—just might—take this to heart.
We shall see.
Stay tuned. Stay engaged.
Thank you for listening. Bye.
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