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PaperclipPerfector  18d ago (text post)   32275 thread views

Culture War Roundup for the week of April 14, 2025

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The rallying cry of the pro-Abrego Garcia camp is: "If they can do it to him, they can do it to any of us." In other words, they see no meaningful difference between him and a legal US citizen, and so there is no Schelling Fence that can be drawn between the two.

That is not the argument. The argument is that if they deport people without due process and then once they're deported, claim they have no jurisdiction, then there is nothing stopping that from happening to American citizens. The argument is not that there is no difference between Americans and non-Americans. The argument is these deportations, specifically, can happen to Americans as well as non-Americans.

Suppose someone pointed out that Americans can have heart attacks just like non-Americans. Your argument is analogous to saying that this amounts to saying there is no meaningful difference between Americans and non-Americans. Just because two things are similar in one respect, that doesn't make them similar in all respects.

The slippery slope argument (e.g. Laurence Tribe yesterday, and Justice Sotomayor's concurrence) is that if the government gets its way with Abrego Garcia, there will be no legal obstacle preventing them from treating citizens in the same way.

The problem is not that there is no legal obstacle. The problem is that there is no practical obstacle. It's not a slippery slope argument. They admittedly deported him by accident without any due process. There is literally nothing to prevent that from happening to an American citizen. It would be a slippery slope argument if they were saying they would target American citizens next. But the problem is that they are deporting people without regard to their legal status.

On other hand, the pro-Trump camp who wants Abrego Garcia to stay in El Salvador are not at all concerned that they will be next, because in their view citizens and non-citizens are two morally distinct categories.

It doesn't matter if they are two morally distinct categories if there is no due process to determine under which category a given person falls. What do you even mean by morally distinct categories? I understand they are distinct legal categories, but to say they are morally distinct suggests they have different moral worth based on their citizenship, which strikes me as callous and absurd.

The US government's treatment of citizens abroad is already effectively unconstrained by the law. The government can negotiate for the release of a citizen imprisoned by another country, but nobody would argue that the government is legally obligated to do this, and it's absurd to imagine a court compelling them to do so, because that effectively makes diplomacy impossible.

The US government is paying El Salvador to take, imprison, and abuse, not only its own citizens, but Venezuelan citizens as well. Of course there is a limit to what the US government should be obligated to do prevent such abuse, but it is totally reasonable to ask that they stop spending resources make the abuse happen for no benefit. The US government's treatment of its citizens (or non-citizens for that matter) is not actually unconstrained by law, but even if it were, that would not excuse its taking advantage of that fact to abuse people. One thing I find so shocking about this is, setting aside the legal questions of its responsibilities, the US government seems to have no desire to correct what it admits was a mistake. I don't understand why they are even taking up the position that they are taking, regardless of its legal merits.

This is because, according to the constitutional separation of powers, foreign affairs are a quintessentially "non-justiciable political question". In common parlance this means: If you don't like what the government is doing, the proper way to fix it is through advocacy and the democratic process, not through the court system.

I'm highly skeptical of this, but even if true, then the US government should not be deporting people to countries where it knows that people will be sent to prison without charge, nor should it be considering sending American convicts to prison in foreign countries. It's one thing to deport illegal El Salvadorans immigrants to El Salvador. It's another to deport citizens of other countries, legally resident in the US, who could be sent to a number of other countries or kept in the US. It's another to do this when it's known that they will be sent to a torture prison filled with gang members without charge. It's another to pay the El Salvadoran government to do this. It's yet another to invite them to come to the US from a safe third country and then send them to the El Salvadoran torture prison.

If you are going to argue for separation of powers, you should remember that the whole point of a democratically elected president is to avoid tyranny and to have certain powers reserved to an institution that represents the will of the people. They should be held to some kind of moral standard, if not a legal one. The point of the separation of powers is not to give carte blanche to the executive branch to do whatever it wants in its area of jurisdiction.

But of course the pro-Trump immigration hawks see no need to take it up, because even if these protests have no effect, this does not in any way diminish their confidence that if a citizen were to be treated in the same way, then the backlash would be swift, universal, and sufficient to compel the citizen's return - no court order needed.

This is a bad system though. The US is supposed to follow the rule of law, not mob rule. That's the reason there are courts. That's the reason the law can only be changed through the legislature.

Prior to anything else in the political life of a nation, there must be near-universal agreement on who constitutes the body politic for whose benefit the government exists and to whom they are accountable.

I know it's not a legal document, but I'll quote the declaration of the independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is clearly inconsistent with the principle that some people are fair game to be lured into the country and then kidnapped and sent to torture prisons. The founding philosophy of the United States does not consider natural rights to be dependent on citizenship or physical location. They belong to all people. You will not get near-univeral agreement that the US government exists to deem 96% of the world's population to be without rights and free to be abused should they make the mistake of entering the reach of the US government.

Given that he was an El Salvadoran national, where else could he be removed to? Are there other countries stepping up to accept deportees on El Salvador's behalf? If the answer is a legal catch-22 where he gets to stay despite being eligible for deportation, then I have no choice but to reject the legitimacy of the process that produces that outcome.

If the answer is a legal catch-22 where he gets to stay despite being eligible for deportation, then I have no choice but to reject the legitimacy of the process that produces that outcome.

He would have been eligible, if ICE had had its own immigration courts reassess the threat to him; the fuckup is that they didn't.

If the courts are ICE's own, this emphasizes rather than undercuts the legal catch-22 characterization. Then this is not an issue of lack of authorities or fundamental human rights, but merely misfiled paperwork. If the issue is merely misfiled paperwork, then it may be a fuckup but hardly the most egregious or the most damaging of the last half decade, or even the last half year.

Note- I do buy into to the Court's position on the process issues. I am speaking instead on the basis of the political reaction.

Note- I do buy into to the Court's position on the process issues. I am speaking instead on the basis of the political reaction.

The political reaction is, of course, devoid of nuance. However, as was pointed out in many replies to the top level commenter, Trump and Bukele refusing to remedy the problem, despite it being very easy to do so, sets a genuinely dangerous precedent.

The district court is ignoring the SCOTUS ruling so I don’t see the problem.

In what way? Source?

My source is the opinion. If you read the SCOTUS opinion closely they didn’t say the ruling required removal to the US; instead they said facilitate removal from ES and then treat the case as if he was deported to that specific country. They then said she needed to carefully draw the ruling to not be over road or transgress Art II. It screamed “write a more narrow order.”

The district judge just said yolo I was proven correct. That isn’t true.

Here's what the SCOTUS opinion said, emphasis mine:

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.

Kind of vague, right? Maybe the SCOTUS meant the Government should only facilitate the release of Abrego Garcia, not to facilitate his return.

However, this was the wording of the original district court order that the SCOTUS deemed to be proper in the "facilitate" sense:

Defendants are hereby ORDERED to facilitate and effectuate the return of Plaintiff Kilmar Armanda Abrego Garcia to the United States [...]

It seems like the SCOTUS decision basically said the order to "facilitate" was proper, but the "effectuate" part needs to be clarified.

Now, the new order from the district court no longer talks about effectuate, but instead focuses solely on the facilitate part, namely:

Accordingly, it is hereby ORDERED that beginning April 12, 2025, and continuing each day thereafter until further order of the Court, Defendants shall file daily, on or before 5:00 PM ET, a declaration made by an individual with personal knowledge as to any information regarding: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate his immediate return to the United States; (3) what additional steps Defendants will take, and when, to facilitate his return.

Granted, the SCOTUS ruling was vague, probably intentionally so for political reasons and to get all 9 justices onboard, but the district court did not pull this interpretation out of its ass, and it's not directly opposing the SCOTUS.

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