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PaperclipPerfector  17d ago (text post)   32241 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.

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

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?

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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