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PaperclipPerfector  15d ago (text post)   32183 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.

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.

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.

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