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PaperclipPerfector  15d ago (text post)   32181 thread views

Culture War Roundup for the week of April 14, 2025

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The 4th US Circuit Court of Appeals declined to lift the order on the executive to "facilitate" the return of Abrego Garcia and I recommend reading it

It's written up by judge James Wilkinson III, a Reagan appointee and Bush era short list candidate for the supreme court and he's quite well respected in the legal profession. This guy has been a conservative for longer than many people here have even been alive, and the stance of seasoned judicial figures like him with old style "respectable" political ideologies are an interesting way to see the change in the rest of politics.

Most importantly in that it incidentally addresses many of the questions and concerns people have about this whole situation.

Like does it matter whether or not the executive's allegations against Garcia are correct?

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or "mistakenly" deported. Why then should it not make what was wrong, right?

What does the Supreme Court's decision actually say?

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 in the conduct of foreign affairs" Noem v. Abrego Garcia, No. 24A949, slip op. at 2 (U.S. Apr. 10, 2025); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the "facilitation" of Abrego Garcia's return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court's decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.

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." Abrego Garcia, supra, slip op. at 2. "Facilitate" is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 ("[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps."). 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 an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government's argument that all it must do is "remove any domestic barriers to [Abrego Garcia's] return," Mot. for Stay at 2, 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.

An interesting difference between the role of the executive and the rule of the judiciary

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

Are the claims that this could be used on citizens valid?

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? The threat, even if not the actuality, would always be present, and the Executive's obligation to "take Care that the Laws be faithfully executed" would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

On the contradictions between both government's public claims of authority and/or responsibility.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.

Are there previous major examples of an executive following a court order it did not like?

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." Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). 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 the decisions of the Federal Courts." Id. at 3. Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result." Id.

And if you're wondering "Why do the courts even get a say here to begin with about the executive's actions?", here's a basic primer.

Exactly what due process do people think was missed? The guy had multiple days in court, and had a standing deportation order, no? If the government managed to bring him back, sticks him before an immigration judge who says "Your asylum claims are no longer valid due to changed facts on the ground, assuming they ever were, it's fine to execute the deportation order to El Salvador", then is everyone who is upset about this going to nod sagaciously and be satisfied that due process was followed? If they get him out of El Salvador and dump him six feet across the border in Honduras, does that fix everything?

How much due process in general needs to be given to each of the 10-30 million illegal immigrants? There was certainly no due processes when they came in; can we hold the entire Biden administration and Democrat party in contempt?

Back to Garcia, what "options" remain after the government of El Salvador has declined to release him? Do the courts expect special forces to exfiltrate a foreign national from a foreign prison?

I'm honestly baffled how people justify this to themselves as anything other than naked "rules for thee but not for me". Does it actually feel, inside, like standing on principle and not just grasping at any procedural trick at hand?

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 the decisions of the Federal Courts." Id. at 3. Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result." Id.

Let whosoever among you has demanded prosecution for Blue State governors who ignore the clear and plain SC rulings on the 2nd Amendment be the first to speak up.

If the government managed to bring him back, sticks him before an immigration judge who says "Your asylum claims are no longer valid due to changed facts on the ground, assuming they ever were, it's fine to execute the deportation order to El Salvador", then is everyone who is upset about this going to nod sagaciously and be satisfied that due process was followed?

Yep, I'd be pretty satisfied by this outcome. My objection to this deportation is pretty much the same as (and milder than) the objection I have to, as @Dean pointed out above, the intentional killing of American citizens without a trial.

If they get him out of El Salvador and dump him six feet across the border in Honduras, does that fix everything?

Maybe not anymore but I don't think this would have blown up like it did if the place he was shipped to wasn't somewhere we were specifically prohibited from sending him.

How much due process in general needs to be given to each of the 10-30 million illegal immigrants?

I mean you're talking about 1 in 30 people living within the US, who came here over the course of decades. It's not reasonable to expect for them to all be deported over the course of months. The number of illegal immigrants in the US has stayed pretty constant over the past couple decades, so I expect that just enforcing existing laws and executing existing processes will be enough to reduce the number of people living here without legal status. And I don’t see any particular reason this has become an emergency that needs to be resolved this year, and historically the executive granting itself emergency powers to deal with an ongoing slow-burning problem has not gone well.

The number of illegal immigrants in the US has stayed pretty constant over the past couple decades,

...?

Which numbers, specifically, are you thinking of?

Generally when I hear this argument, it refers to articles like this one, which presents arguments like the prominant graphic one that the 'undocumented' migrant population has remained relatively constant in the US since 2008 (~12 million.)

However, they tend to bury the categorization schemes like this-

Arrivals of undocumented immigrants are offset by many hundreds of thousands of departures from the undocumented population each year, including those that emigrate voluntarily, are removed by DHS, adjust to legal status, or die. Reliable statistics are not available to measure these four ways of leaving the undocumented population.

However, one of these categories is notably not like the others. 'Adjust to legal status' is a legal category shift, not a departure (or death) of the person.

If you provide a temporary legal status to a million illegal immigrants, your country's population has still increased by a million people, even if you offset that number by a million legal-category grants. This is a false equivalence of categories that avoids dealing with the implications and insinuations of absorbing a million peoples who arrived illegally, mostly by handwaving the numbers away as no longer counting.

Further, even the 'removed by DHS' category is subject to statistical chicanery. Or as a former president once admitted, "a little deceptive."

During the Obama administration, for example, the Obama administration's deportation statistics conflated different actions that made the number of deportations appear high even as the expulsion of people who settled and worked in the US decreased. That sort of mismatched occurred because at- or immediately-within border returns were publicly equated to deportations. Moreover, the Obama administration counted removals that previous administrations wouldn't have. This was a recategorization that let Obama claim a hard-on-illegal-immigration reputation even as the expulsion of people who settled and worked in the US- i.e. deportation of people who got past the border crossing phase- dropped by 40%. This practice resumed with the Biden administration

So when the (often pro-migration) studies make claims that the migrant population is generally steady, it's always important to see how they address the issue of re-categorization of migrants (redefining illegal arrivals as legal residents no longer tracked) and the conflation of deportation types.

If you were to go to a home depot parking lot at 7 am and talk to the workers there, what do you think the median time the undocumented subset of workers have been in the country would be? I predict 8 ± 3 years.

Do you predict otherwise? If not, that means that most illegal residents of the US are not recent arrivals.

The number of illegal immigrants in the US has stayed pretty constant over the past couple decades

Why do you think this is true? There was a huge spike in illegal and quasi-legal immigration during the Biden administration.

Huge relative to the number of illegal immigrants already in the country? I will repeat the question I asked Dean:

If you were to go to a home depot parking lot at 7 am and talk to the workers there, what do you think the median time the undocumented subset of workers have been in the country would be? I predict 8 ± 3 years.

Do you predict otherwise? If not, that means that most illegal residents of the US are not recent arrivals.

Speaking as likely the only person in this forum who has ever dug ditches alongside illegal immigrants, I would expect it to be much, much lower. If you've been here for 11 years and the best you've got is waiting outside Home Depot, you probably utterly suck.

And that's beside the point. The number of people who are estimated to have come in during the last 4 years is comparable to the total prior illegal population.

Do you think all of the previous ones dipped during the Biden administration?

The number of people who are estimated to have come in during the last 4 years is comparable to the total prior illegal population.

I expect this statistic double-counts people, because I find it quite doubtful that the median length of time that people have been living here illegally is 4 years or less (which it would have to be, if more than half of the people who are currently living here illegally came in the last 4 years).

I don't dispute that Biden's immigration policy was bad BTW. I specifically dispute the claim that before Trump I illegal immigration was not an emergency, but between the end of Trump I and the start of Trump II, it became such an emergency that it now requires resolution within months, and so we must set aside rule of law and due process concerns.

because I find it quite doubtful that the median length of time that people have been living here illegally is 4 years or less

Why? Is there literally anything you're hanging this on aside from raw hope and vibes?

I live in California, I interact with people who are not here legally on a quite regular basis. Thinking about e.g. the people I know who have a new partner/housemate, or got a new nanny/gardener, and then filtering down to those that are not here legally, they're mostly people who have been here for a while. Substantial selection effects, obviously.

But also census data says, of foreign-born non-citizens, the distribution of dates of entry as of 2023 was

Entered 2010 or later: 12.8M (56%)
Entered 2000 to 2009: 4.9M (21%)
Entered 1990 to 1999: 3.0M (13%)
Entered before 1990: 2.1M (9%)
Total: 22.9M

As of 2021 the same data was

Entered 2010 or later: 10.2M (48%)
Entered 2000 to 2009: 5.3M 24.79%
Entered 1990 to 1999: 3.3M 15.66%
Entered before 1990: 2.4M 11.32%
Total 21.2M

So that's an increase of 1.7M non-citizen immigrants in the 2 year period from 2021 to 2023, with an increase of 2.6M who entered after 2010 (and a decrease of ~900k non-citizens who entered before 2010 over the same time period, who left/died/gained citizenship). And keep in mind that in a normal year 700k to 1M green cards are issued. So I don't see space for half of illegal immigrants to have come over later than 2020.

Where are you getting your data, aside from vibes?

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Land of opportunity standards have been dropping though. I know a bunch of illegals who came over 15-20 years ago, and a lot of them have their own lawnmowing/landscaping/general services businesses now. (God knows how they manage the finances.)
But now the new guys coming over don't have as many niches left to fill, except being cheap labor for the last cohort. I see a lot more of them going for dead end jobs and never climbing out

Exactly what due process do people think was missed?

Lucky for us that was provided "If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal)."

If the government managed to bring him back, sticks him before an immigration judge who says "Your asylum claims are no longer valid due to changed facts on the ground, assuming they ever were, it's fine to execute the deportation order to El Salvador", then is everyone who is upset about this going to nod sagaciously and be satisfied that due process was followed

From a legal perspective, yes. There's a reason why the courts (including this Reagan appointed Bush supported conservative judge) have been so consistent here.

How much due process in general needs to be given to each of the 10-30 million illegal immigrants? There was certainly no due processes when they came in; can we hold the entire Biden administration and Democrat party in contempt?

This is just a fundamental misunderstanding of government. Due process applies to government taking action, it is a limit on the ability of government to do what it pleases to people in its jurisdiction.

Back to Garcia, what "options" remain after the government of El Salvador has declined to release him? Do the courts expect special forces to exfiltrate a foreign national from a foreign prison?

Courts are lenient, but they are not intended to be blind. They can easily see through the obvious and barely hidden ruse that if Trump really wanted to, he could help facilitate Garcia's return quite easily. One easy way to help for instance would be to stop paying El Salvador to hold him there.

This isn't unique to the Trump admin, judges have always been able to consider a wider context in their decisions. This can even happen with normal citizens in criminal/civil court. There is a reason why the Supreme Court ruled 9-0 on this, despite judicial disagreements they're all seasoned experts just like Wilkinson and they understand this well.

Courts are lenient, but they are not intended to be blind. They can easily see through the obvious and barely hidden ruse that if Trump really wanted to, he could help facilitate Garcia's return quite easily. One easy way to help for instance would be to stop paying El Salvador to hold him there.

You do understand that the Trump administration maintains that they are not paying El Salvador to hold Garcia, right? I'm pretty sure I have replied to you before indicating that.

Maybe Félix Ulloa was lying when he said the Trump admin is paying them to house the deportees, but it's weird to imagine that they accepted a deal to house them without anything in return. So if it's not the money, what shady deal is going on that they're trying to cover up?

He's an El Salvadoran citizen, which means El Salvador is obligated to accept him back, without payment. Venezuela's relations with the US are already bad enough that they can shirk this obligation without much trouble, but Bukele wants a good relationship with the US so he won't do that. He's in CECOT because Bukele thinks he's a member of MS-13 and that's where Bukele wants members of MS-13.

There are multiple meanings to "US Government is paying to house prisoners in ES". One is that the U.S. is basically paying hotel fees per prisoner to have them housed in an El Salvador prison. In this case, sure you could simply stop paying the fee and presumably El Salvador might feel obliged to release him. Another is that the U.S. is providing a block grant or something else of value of the privilege of having the repatriated nationals accepted by El Salvador at all, or as general compensation for the fact that many need to be imprisoned by El Salvador. In that case, it's not a simple matter of procedure but actual foreign policy to threaten to cut off funding over the disposition of a single individual.

So if it's not the money, what shady deal is going on that they're trying to cover up?

First thing that comes to mind: what was the level of tariffs set for El Salvador during the recent drama?

Lucky for us that was provided "If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal)."

So if they do this tomorrow via zoom call, you're going to switch sides on the debate and boldly battle the people claiming that bad things have happened?

From a legal perspective, yes. There's a reason why the courts (including this Reagan appointed Bush supported conservative judge) have been so consistent here.

I'm excited just imagining all the consistency!

Due process applies to government taking action, it is a limit on the ability of government to do what it pleases to people in its jurisdiction.

The government took many actions that it pleased to people in it's jurisdictions in facilitating the 10-30 million.

One easy way to help for instance would be to stop paying El Salvador to hold him there.

Do we have any evidence that this is the case beyond Van Hollen claiming that the ES VP told him this? Given the TdA people we are paying for, that seems like a situation with a high likelihood for misunderstandings.

So if they do this tomorrow via zoom call, you're going to switch sides on the debate and boldly battle the people claiming that bad things have happened?

It might be surprising to hear that some people care about the rule of law instead of just partisan "Lawbreaking I agree with = good, lawbreaking I don't like = bad" but yes.

I recommend looking up people like John Locke and William Blackstone to get a basic idea of the foundational values our modern western legal system operate on.

Great. I'm sure you have a large backlog of posts making this same point at progressives, right? Are you familiar with the concept of an "isolated demand for rigor"?

Are you implying that you a stranger, not knowing everything I talk about by the nature of being a complete stranger have any means whatsoever to accuse me of hypocrisy here?

If you're gonna argue with the made up vision of other people you don't know that you have imagined in your head, then enjoy yourself.

Just for the record, going to someone's userpage by clicking on their handle does, in fact, allow you to see everything that person's posted on theMotte. Also, theMotte is small enough that some people (though not me) do read basically everything.

That's still incredibly flawed to assume reading through my limited postings on a single website make you meaningfully less of a stranger who does not know me or what I believe/have previously done.

This is no excuse to conjure up an imaginary strawman of a conversation partner and make unfounded allegations against them because of the mismatch between reality and strawman.

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Unless they have a private account of course, which I've noticed is never a good sign.

accuse me of hypocrisy here

I'm heavily hinting at it, while offering you every reasonable opportunity to demonstrate that the accusation is inapplicable.

Needless to say, I shant be holding my breath, and absence of evidence is very much Bayesian evidence of absence.

"if you don't entertain my made up accusation of a stranger I don't know anything about, then it must be true" is an interesting way to look at the world

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Exactly what due process do people think was missed? The guy had multiple days in court, and had a standing deportation order, no?

And the result of his days in court was the right to not be sent to El Salvador. He was sent to El Salvador, specifically a prison in El Salvador. So I'd say "The part where the government complies with the order (or goes through the process of reversing it)" was missed.

If the government managed to bring him back, sticks him before an immigration judge who says "Your asylum claims are no longer valid due to changed facts on the ground, assuming they ever were, it's fine to execute the deportation order to El Salvador", then is everyone who is upset about this going to nod sagaciously and be satisfied that due process was followed?

Whether the millions of people hearing about this will all be happy, well that's statistically impossible. But you've described one of the legal routes, alongside finding a different country to send him to.

Back to Garcia, what "options" remain after the government of El Salvador has declined to release him? Do the courts expect special forces to exfiltrate a foreign national from a foreign prison?

An actual attempt at diplomacy? Not giving them money to fund said prison? The expectation here is only for the Administration to behave in a manner as if they were reasonably attempting to get him back, which it's blatantly obvious they are doing everything they think they can to try to defy the order.

How much due process in general needs to be given to each of the 10-30 million illegal immigrants?

As much as the law says. If that's too much, change the laws. The government does not get to ignore laws and court orders because they feel like it. And no, I don't care about those times that you subjectively feel that Democrats got away with it. Right here and right now Trump is trying to do so and the court is trying to stop him from doing so.

Does it actually feel, inside, like standing on principle and not just grasping at any procedural trick at hand?

Yes, actually. A unanimous opinion from a conservative Supreme Court appears to agree on this.

Arguments surrounding the guy's immigration status are irrelevant here. At no point has the administration argued that its obligations would be any different were he an American citizen; it's taken a firm stance that the court has no authority to compel the executive to return someone held by a foreign government. Period. If the court sides with the administration, there's nothing preventing Trump from deciding that it's easier to send a high-profile citizen criminal to El Salvador than to provide the due process the law affords him. And who is going to argue? After all, there was certainly no due process provided to the victims of his crimes. At that point, 200 years of constitutional law will go down the toilet. Every citizen is entitled to due process, unless the government decides he isn't is not the hallmark of a free society.

it's taken a firm stance that the court has no authority to compel the executive to return someone held by a foreign government.

This wouldn't be a sustainable precedent generally, though: if the judiciary can compel specific actions in international relations, even returning American citizens generally, how do you bound that power? Should we have invaded Venezuela to free the Citgo Six? Or Italy to free Amanda Knox? Congress explicitly allowed the executive to invade The Netherlands in 2002 in such a hypothetical situation, so I don't think you can just wave off "by any means necessary, but not those means."

I never said that the court should require "any means necessary". I think that there is a certain bar above which you can say that the administration is making satisfactory efforts to facilitate his return, and that courts are qualified to determine where that line is. The problem here is that the administration has made clear that they have no intention of doing anything; indeed that their preferred outcome is that the deportee remain imprisoned in El Salvador. If the administration at least tried to give the appearance that they were making minimal efforts to secure the guy's return, I'd be more sympathetic to the government's argument. But they're making a public show of doing nothing.

If the Court has a better plan, then they should order it and get it over with.

The district court order the government is appealing requires them to provide updates and outline steps being taken to effectuate his release. The government is arguing that they aren't required to do that. I don't think anyone is under the impression that El Salvador wouldn't return him if the Trump administration were serious about getting him back.

Sorry, this is about the principle. Do you think the courts can generally demand the executive make specific foreign policy actions, requiring specific ends in direct contradiction to the logic in the legal decision upthread? Can you elaborate exactly what the limits of this judicial power are? Remember, we're all being DEEPLY CONCERNED about slippery slope precedents - can you show us exactly where the judges have explicitly claimed that they CANNOT order the executive to overthrow foreign governments? I mean, if they can order Trump to do this here, then there is NO LIMIT on them ordering him to do literally anything, no matter how insane and evil!

Right? That's how the arguments elsewhere in this thread have gone.

Remember, we're all being DEEPLY CONCERNED about slippery slope precedents - can you show us exactly where the judges have explicitly claimed that they CANNOT order the executive...

I think there's a decent argument to claim that Marbury v. Madison has been a slippery slope to such judicial overreach. As evidence, I'd actually point to Roberts' preference for judicial restraint: he seems aware that there isn't an inherent limit on what powers the judicial branch would claim (who would overrule them?) as long as the other branches are keen to follow along. The corollary there is that if the Court were ever to truly "reveal its power level," it might well find out it's not as high as it thinks it is. I was listening to the Louisiana v. Callais oral arguments yesterday, and it seemed like there was an implicit awareness that redistricting precedent at least in theory allows the judiciary to destroy the districts of arbitrary members of Congress, and that it needs to balance its rulings WRT the Voting Rights Act (which are IMHO not sustainable as defined mathematically) and the states' inherent political powers.

I have neither the time nor the inclination to write a legal opinion outlining any proposed limits of judicial interference with executive action. What I will say is that from a practical perspective, it doesn't matter. You can propose all sorts of scary scenarios you want where the president is required to wage nuclear war based on a court order for something seemingly trivial, but I'm not moved by them for the simple reason that such a system is vastly less scary than the one we're currently presumably operating under. Per the government's arguments, the president—one man—could achieve any of these insane and evil ends on a whim, with no check whatsoever other than the courage of subordinates to defy orders. The argument in favor of this position is that the president is at least elected, and thus reflects the will of the people. But leaving it to the courts is the safer option. If the courts did order the president to overthrow a foreign government it would only be after several levels of review that requires at least some consensus among multiple people. I'm not arguing that the court should necessarily have this much power, or that the president shouldn't have a large amount of discretion, but even if we take the slippery slope all the way to the bottom, I still don't see what the huge concern is relative to the existing structure.

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If the issue under debate is due process, how can his immigration status be "irrelevant"? His immigration status is what determines how much process is due.

His immigration status is what determines how much process is due.

It may do, but even the Trump administration admits that the result of the due process he was entitled to has simply been ignored and now they say it doesn't matter because they have no obligations to someone in a foreign principle. The point is that the same logic could apply to citizens. Say a domestic citizen criminal is due to be deported to be held in a foreign prison, the judiciary decides this is not legal, but then the executive decides to do it anyway, the exact same logic Trump uses ('you can't compel us to take any action related to foreign policy') still applies and the citizen never returns.

result of the due process he was entitled

What exactly does this mean to you? I feel like everyone arguing this is just treating "due process" as an incantation. The part of the process that was missed was that they were supposed to fill out an extra form before doing exactly what they did.

I feel like everyone arguing this is just treating "due process" as an incantation.

I'm fairly certain that this point "due process" has become "enough layers of review until my desired outcome is reached, and no more." Which isn't to say that due process isn't a good idea generally, but maybe we need pre-commitment to what the process should be, like we've started registering scientific studies to prevent cherry-picking results.

The issue under debate isn't due process. The government made no argument in its motion about the amount of due process, if any, should have been afforded to the deportee. It was simply about whether the courts can compel the executive to take a particular diplomatic action.

Arguments surrounding the guy's immigration status are irrelevant here. At no point has the administration argued that its obligations would be any different were he an American citizen; it's taken a firm stance that the court has no authority to compel the executive to return someone held by a foreign government. Period.

I'm sorry, but this seems so stupid it's hard to take it seriously. Are you somehow under the impression that orders for deportation are routinely assigned against American citizens?

Does every legal document regarding the sentencing of a convicted criminal to prison have a clause specifying that the government is NOT claiming the ability to randomly throw innocent people in jail? Or do we just assume that people aren't completely retarded?

it's taken a firm stance that the court has no authority to compel the executive to return someone held by a foreign government.

Yes? Obviously? Do you think the courts can, e.g., force the executive to take any and all actions necessary to effectuate the release of, say, Britney Griner?

If the court sides with the administration, there's nothing preventing Trump from deciding that it's easier to send a high-profile citizen criminal to El Salvador than to provide the due process the law affords him.

Are you claiming there are absolutely no legal restrictions on the US government kidnapping and black bagging citizens?

Every citizen is entitled to due process, unless the government decides he isn't is not the hallmark of a free society.

We already live in a society where the government can have minor citizens obliterated from the sky with no due process.

And you ignored all of the questions I asked. I'm inclined to think you don't actually have any kind of a real theory of the law here, and are just flailing out of raw oppositional sentiment.

take any and all actions

There are some intermediate stages between 'any and all actions necessary' and 'publicly approve of and pay for his foreign imprisonment'.

Neat. When are the courts going to clarify how much power they have to drive foreign policy like that?

Exactly what due process do people think was missed?

They don't. They are simply lying. Yes, it is my belief that to say Garcia was "denied due process" is a lie.

I spent the first few days or so believing that the Trump administration had simply picked up someone off the street who looked brown enough to be an illegal immigrant and sent them off to El Salvamo without so much as a leaf of paperwork. No due process. No oversight.

I was lied to, and the lies had their intended effect of planting a false understanding of the facts into my mind. "This could happen to any citizen!" Please.

I'm most disappointed in myself. After eight years of this shit I still haven't learned to assume every negative thing I hear about Trump is an outright lie until I see it with my own eyes.

They don't. They are simply lying. Yes, it is my belief that to say Garcia was "denied due process" is a lie.

Okay, coming in to this late because I was hoping someone else would address it.

This is really skirting the line. You may sincerely believe that literally no one actually believes Garcia was denied due process. If so, you are engaging in a complete failure to extend even a little bit of charity or theory of the mind to people who think differently from you, including (obviously) people here in this forum. Even if you didn't directly address them, you're clearly addressing this at them. Coming as close as you think you can get away with to "Anyone who disagrees with me on this is a liar."

Besides obviously being intended as a slap delivered to anyone arguing the opposite, it's simply very poor argumentation. You don't have to steelman every argument you disagree with, but you should at least keep in mind that very often people really do believe the things they say they believe, and saying "No, you can't actually believe that, you're just lying" is a cheap dodge to avoid defending your own position or addressing theirs. It never produces good discussion, and here it just inevitably leads to clusterfuck threads where people are trying to get their digs in to express how much contempt they feel for the other side.

Note that I am not trying to rule on the object level claim here- I have read the same breakdowns of the Garcia case as everyone else and the situation is, at best, fuzzy. I am sure there are people arguing in bad faith. I'm sure there are people who really believe what they say, regardless of how well-founded their beliefs are.

Despite all the upvotes, you also got reported six times and the "volunteer janny" banner seems to agree with me that this post was borderline, since it keeps alternating between "bad" and "not bad."

In my opinion, this is a bad post because while the rest of it was fine, the very first sentence was its purpose, and that purpose was just to tell off your enemies because you're angry.

ETA: and to @UrgentSloth and @Thoroughlygruntled, who were so thoroughly disgruntled that I modded the "Fuck you" in response to this post but did not mod this post. My initial opinion on this post was that it was borderline. I don't like people calling other people liars, but you are allowed to believe that other people are lying. You are allowed to have negative opinions about your opponents. You have to be civil about it, no matter how uncivil you are actually feeling, but this was borderline.

I did not mod @HighResolutionSleep right away because I kind of wanted another mod who hadn't already intervened in this thread to make the call. But three days later it's still sitting in the queue with six reports and a controversial vote count so someone had to say something, or just dismiss it, and well, I wanted to say something because I agree that "Everyone who disagrees with me is a liar" is not good discourse. So don't do that. Also, don't tell someone off with a "Fuck you" because they are not engaging in good discourse. ESH.

They don't. They are simply lying. Yes, it is my belief that to say Garcia was "denied due process" is a lie.

Fuck you.

The due process needed here was 90 seconds in front of a judge to say "I have a withholding order against being removed to El Salvador." The same 90 seconds I need to be able to say "I'm a fucking citizen, please stop these thugs."

Garcia didn't get his, and you or I may not get ours (respectively, depending on who wins '28).

  • -20

The same 90 seconds I need to be able to say "I'm a fucking citizen, please stop these thugs." Garcia didn't get his

You have been lied to. Garcia did, in fact, get the opportunity to prove he was allowed to be here twice.

Fuck you.

You may not have been here long, but I'm sure you know better than that.

One day ban.

What about the lazy "everyone who disagrees with me is lying" swipe he was responding to?

This mod is deliberately crafting an echochamber.

That's what I believe, and this mod has no problem with people baselessly asserting their insulting beliefs.

  • -10

Your belief is ignorant and incorrect.

Do not tell people "Fuck you" because you are offended.

You're a liar.

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Anwar Alaki’s innocent kid didn’t get 90 seconds to say shit. Instead he and his fellow cafe members were droned to death because he “should’ve picked a better father.” Yet Garcia who already had multiple court cases establishing that he was in fact removable is taking up orders of magnitude more air time. I wonder why that is?

As I recall the Anwar Alaki case actually got quite a lot of airtime, at least in the circles I inhabit.

To be clear I was talking about his kid. And it was nothing like with Garcia.

I wonder why that is?

Two reasons:

  1. You may think that killing someone is the worst thing someone can do to them, but as a litigator, I can assure you that is not the case. Any case with a live victim who can testify and enjoy the proceeds of the suit directly will collect more than a wrongful death action where the injury is determined by extrinsic evidence and the proceeds go to the family. Garcia is currently in jail and the administration (presumably) has the power to get him out, and there is action in the court system almost daily. It has implications for the administration's policies going forward. Alaki wasn't in the news until several years after his death, and while the surrounding circumstances certainly had implications for policy, they weren't as salient.

  2. Criticism of the Obama administration came mostly from Democrats, and internecine wars aren't going to make the news as much as wars that have cross-party intrigue. The media outlet furthest to the right condemning the attack was the New York Times editorial board. Fox News, on the other hand, was going so far in the other direction that even the administration was telling them to stop. If the country is roughly split half and half R/D, and only half the Ds are making a controversy about something, it's not going to catch on, especially if see No. 1.

I don't know how old you are or the social circles you run in, but among left-of-center people at the time there was definitely a fatigue about Obama setting in. The whole Clinton–Kerry foreign policy machine seemed like a continuation of the failed Bush policies, or for that matter the 20th Century foreign spook shit writ large. And then on the other side, you had Republicans who said he wasn't being aggressive enough. I'm beginning to suspect that the whole turn toward what would become wokeness in late 2014 was largely an attempt to reconnect with a leftist base who had largely become frustrated with his schtick.

I don’t think anything you write there is the true reason. First, wrongful death suits are pretty much orthogonal to how the public thinks about these things (ie most people would be more concerned about the government having the ability to summarily execute them as opposed to jailing them). Second, the killing of Alwaki wasn’t years old; it was prominent. If memory serves Rand Paul filibustered over it.

No, I think the true reason is that progressives and their media allies don’t really care about due process; it is used as a weapon. They don’t like Trump deporting illegals so they brought up this case where there is a silly argument over due process (nobody disputes the core underlying fact that he ought not be in the US) and are trying to use it to paint with a wide brush.

So yeah I dont think progressives in toto are being honest here though that doesn’t mean the person I’m responding to is being dishonest.

We can quibble about the timeline, but, Rand Paul (whose speech was in 2013) aside, Progressives were, by and large, the only people arguing for Awlaki's civil liberties. Again, it would help if I knew how old you were at the time, what media you were consuming, and what kind of company you kept, but as someone in his late 20s who listened to either NPR or Democracy Now! on his way to work but would occasionally switch over to right wing talk for a change of pace and whose friends were (mostly) Democrats, NPR and Democracy Now! were regularly running segments talking about how much of a travesty Alwaki's death was. Right wing talk radio, in a rare move, defended Obama's actions, while at the same time criticizing him for not being aggressive enough. They thought the standards the administration used to determine the guys was sufficiently dangerous to merit extrajudicial execution were too high.

I was in college at the time. Regardless, I think practically it was a relatively small story.

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I don't know how old you are or the social circles you run in, but among left-of-center people at the time there was definitely a fatigue about Obama setting in.

I still remember people calling Glenn Greenwald a closet rightwinger for pointing this sort of stuff out, and if "fatigue" is an appropriate response to a citizen being sentenced to death without a trial (and the execution resulting in the death of his underage son that wasn't even given a process-free death sentence), than I think shrugging and moving along should be a valid reaction to sending a non-citizen back to his country, even if it violated process and resulted in him being thrown into a prison.

I’m pretty sure the kid was assassinated in a separate drone strike in a cafe.

Damn, I always thought he just got hit by the same bomb as his dad.

Sorry, I did a bad job of explaining what I meant there. I wasn't using fatigue as a justification for lack of interest. What I meant was that this execution, combined with a bunch of other shit Obama did on the foreign policy front, let to a fatigue with the administration among more progressive voters, particularly younger ones. Obama was elected largely on the promise that he'd back away from the aggressive war on terror policies of the Bush administration. In the '08 GOP primaries you had people like McCain and Fred Thompson who were doubling down on this position. Then Obama comes in and while he was eventually able to get out of Iraq, he doubled down on Afghanistan without making any progress, invaded Libya, wasn't able to close Gitmo, drew lines in the sand in Syria, oversaw an NSA domestic spyiung program, and was now droning US citizens. He was able to make up some of this ground by moving to the left on social issues later in his second term; this ended up being good for him personally, but it wasn't enough to save Hillary Clinton, whom millennials didn't like to begin with and was largely seen as the architect of some of these adventures. The fatigue that I'm referring to is the fatigue with the entire Democratic establishment that led to Bernie Sanders almost giving Hillary Clinton a run for her money in 2016, a fatigue that was largely the result of the Obama administration's more conservative views on civil liberties.

Garcia didn't get his, and you or I may not get ours (respectively, depending on who wins '28).

If that's supposed to sound scary, you should probably stop your side from using "due process" as a weapon to begin with.

Due process is never a weapon.

The denial of it is the weapon.

I do not want my side to read from the book your side is cracking open.

Neither of us can do anything to stop these things. I just hope for you to see THAT IT IS BAD.

Due process is never a weapon.

I completely disagree with this. Knowingly dragging an innocent person through the court system in an attempt to intimidate or punish him for his lawfully taken actions is a weapon, and has already been used. Cool! I get my "day in court", several in fact! I get to spend from tens up to hundreds of thousands of dollars fighting the feds, and if my lawyers slip up, I'm getting locked up. Yay "due process"!

It's the due process that gives you your several days in court, however taxing they may be, rather than just, say, being disappeared to a banana republic's prison system.

Sure. I'm not saying all systems with no due process are better than systems with due process, or that they're better on average, or anything like that. I'm saying fixating on the idea leaves you open to Goodhart’s Law, a failure mode that seems to be more and more frequent in western liberal democracies. If you want an extreme example, the Soviet Union had due process as well.

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Say there is a powerful government official who wants to do these things to you.

Would you rather live in Earth 1 where there is due process, or Earth 2 where there isn't?

It's not "due process " which is costing you hundreds of thousands. It's the bad government official, and due process is protecting you from them, even if it sucks.

It hurting to be shot while wearing a bullet proof vest doesn't make the vest a weapon of the enemy.

Say there is a powerful government official who wants to do these things to you.

Would you rather live in Earth 1 where there is due process, or Earth 2 where there isn't?

It depends on many factors, and there might indeed be cases where I'd opt for Earth 2.

It's not "due process " which is costing you hundreds of thousands. It's the bad government official, and due process is protecting you from them, even if it sucks.

This assumes the government official would do something more egregious to me given the choice, and I see no reason to grant that. If you start sweeping people off the street and sending them to gulags, that's the kind of action that is plainly visible to my fellow citizens, and it comes at a cost to the person who ordered it. Maybe they're as powerful as Stalin and they can afford such ruthlessness, but if we're talking about something roughly analogous to modern American, if nothing else he'll have to be careful about what will happen to him, if his party loses the elections. This is where due process helps people like that. You can ruin someone's life without exposing yourself to threat of retaliation.

Keep in mind, if you want to say that, all things considered, you'd prefer to live in a country with due process than without - that's fair enough, it's a completely respectable position. All I'm saying is that your original position of "due process is never a weapon" is clearly false, and that it's been abused to the point that your original implied threat isn't necessarily so scary.

You'd rather get locked up instantly? UrgentSloth was commenting on the dichotomy between "due process" and "locked up without", not between "due process" and "unmolested".

You'd rather get locked up instantly?

Depends for how long. Also, the obvious injustice of it might paradoxically help me retain my standing in my community.

UrgentSloth was commenting on the dichotomy between "due process" and "locked up without", not between "due process" and "unmolested".

Then maybe he should have said that, instead of saying "Due process is never a weapon. The denial of it is the weapon."

It's not quite true to say that he was "denied" due process, but there is definitely a sense in which his due process was "violated"

Say you are accused of a crime. You are put on trial. The trial proceeds as normal and results in a judgement of aquittal. The cops throw you in prison anyway. Were you "denied" due process? You technically got a trial. The issue is that the due process didn't actually do anything. Despite the aquittal, you were still imprisoned.

Every indication is that every effort was made to give this man due process, and that a procedural shortcoming prevented the third opinion from preventing the deportation.

If the cops pick me up and toss me in jail because they have a warrant for my arrest they didn't know was cancelled, my due process rights are not being violated. I am a victim of a procedural deficiency. To say that my right to due process has been violated would be incorrect.

When you combine this with the sensational rhetoric of "this could happen to anyone" etc, this incorrectness becomes undeniably malicious. It is a lie.

People are telling this lie because they want to paint the image of the Trump administration as an unhinged and tyrannical force. People getting the wrong idea when hearing these lies is a feature, not a bug.

If the cops pick me up and toss me in jail because they have a warrant for my arrest they didn't know was cancelled, my due process rights are not being violated. I am a victim of a procedural deficiency. To say that my right to due process has been violated would be incorrect.

This is highly fact pattern specific.

If you are convicted of pot distribution and jailed, put on death row, and speedily executed. I'm sure you'd agree that you were denied due process.

This is highly fact pattern specific.

Sure, which is why the example you've provided is completely irrelevant to the case at hand. Sure, if a cop went and pulled me over and shot me in the head because he thought he was Judge Dredd, that would be a pretty hideous denial of due process.

But if that cop brought me in front of a court that deemed me guilty two times, and a third wound up putting a temporary stay on my arrest to a particular jail that never made it to the cop before I was put there, that's a completely different category of error.

So now due process requires us to wait to deport people? How long?

Honestly the fact that this is the worst (or most sympathtic depending on your framing) case they (the anti-Trump/pro-illegal-immigration advocates) could find actually increases my confidence that the folks at ICE/DHS are trying to do thier due diligence.

this is the worst case they could find

Not necessarily. Being controversial or borderline increases social media virality because both sides can angrily post about it. Toxoplasma of Rage and all that.

The hairdresser case is probably just as bad tbh, at least from an optics perspective.

If the government managed to bring him back, sticks him before an immigration judge who says "Your asylum claims are no longer valid due to changed facts on the ground, assuming they ever were, it's fine to execute the deportation order to El Salvador", then is everyone who is upset about this going to nod sagaciously and be satisfied that due process was followed?

Yes, I think that would be amazing. The guy came to the country illegally, and he was also deported illegally, by the government's own repeated admission, given the withholding order forbidding his removal to El Salvador. If the government took steps to only send him to El Salvador after getting the withholding order revoked by due process, that would be a dramatic improvement to the current state of affairs.

If they get him out of El Salvador and dump him six feet across the border in Honduras, does that fix everything?

I think that would be also be a dramatic improvement, for obvious reasons.

Back to Garcia, what "options" remain after the government of El Salvador has declined to release him? Do the courts expect special forces to exfiltrate a foreign national from a foreign prison?

Given that we are paying El Salvador to hold him, presumably we have some say in this. For starters, we could stop paying.

I'm honestly baffled how people justify this to themselves as anything other than naked "rules for thee but not for me". Does it actually feel, inside, like standing on principle and not just grasping at any procedural trick at hand?

And I'm honestly surprised to read this, since I could say the same about those putting forward technical arguments in defense of the government. It frankly did not really occur to me that the government might actually believe in or care about the legal merits of its case.

Perhaps we can agree that the vast majority of people on either side of this are using legal arguments as soldiers, and that the real disagreement is about something else - something to do with whether we ought to have any sympathy for this man and whether the US has any obligation to him, morally.

Yes, I think that would be amazing. The guy came to the country illegally, and he was also deported illegally, by the government's own repeated admission, given the withholding order forbidding his removal to El Salvador. If the government took steps to only send him to El Salvador after getting the withholding order revoked by due process, that would be a dramatic improvement to the current state of affairs.

Is the number of people who think this way above 100 in the country? The judge who has issued many orders to Trump certainly is not in this camp. That judge intends, once Maryland Man is back in the US, to keep him here forever. As do his lawyers. His wife, maybe, maybe she prefers whatever monetary payment she thinks the judge will order for her. But still she doesn't expect the result you are talking about.

What everyone expects to happen is that, if this person returns to the US, he will never leave the US. Or, if he does, it will be after a decades long legal process where Amy Coney Barret and John Roberts issue multiple rulings where they clearly articulate that they are sick of hearing cases about Mr. Garcia, but also are completely unclear about the remaining portions of their ruling.

Is the number of people who think this way above 100 in the country?

I would also approve of this. I would also be perfectly content with the US government bringing him back, and then sending him to some other willing or bribed country.

Edit: so if there's already 2 in this tiny space, I'm guessing there are at least 10s of thousands of us.

Edit: so if there's already 2 in this tiny space, I'm guessing there are at least 10s of thousands of us.

Nah, this community is specifically a locus for principled civil libertarians - or at least it was before they started getting black-pilled by the isolated demands for civil principles. The presence of such people here is not indicative of their popularity in wider society.

Count me as a third. That many of our interlocutors are having trouble conceiving of this as a good-faith position is itself revealing of something about which I probably shouldn’t speculate.

I'm not having any such trouble. I can name a handful of people who hold this as a good-faith position, I just have huge doubts many people posting here are among them.

The thing it's revealing is a familiarity with the concept of "isolated demand for rigor". For example, if this were a truly good faith position, I might expect ameliorating statements along the lines of "Missing one administrative step in 100,000 cases is actually very impressive. Even with this screw-up, this is vastly better than expected for ANY government action."

The relevant sample size is "at least one of 278", not "at most one of 100,000". But honestly if it was "we fucked up on this one of 278, but we're making a good faith effort to fix our fuck up" I think that would be fine. It's the "we fucked up, we admit we fucked up, we totally could fix it, but we won't and you can't make us" that is getting people up in arms.

Why? This fucker is substantively guilty and the only reason this is an issue is a BS asylum claim.

If the government took steps to only send him to El Salvador after getting the withholding order revoked by due process, that would be a dramatic improvement to the current state of affairs.

So we can clean all this up with a quick Zoom call then? Don't even need to actually get him out of the prison.

Given that we are paying El Salvador to hold him, presumably we have some say in this. For starters, we could stop paying.

So judges have the authority to detonate international agreements like this? Our foreign policy is determined by any district judge who feels like weighing in?

So we can clean all this up with a quick Zoom call then? Don't even need to actually get him out of the prison.

Not necessarily.

https://www.justice.gov/eoir/reference-materials/ic/chapter-4/7

except that evidentiary hearings on the merits may only be conducted by telephone conference if the respondent consents after being notified of the right to proceed in person or through video conference. See INA § 240(b)(2), 8 C.F.R. § 1003.25(c)

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