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PaperclipPerfector  25d ago (text post)   32372 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.

...is that it?

This point on facilitation, for example-

"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.

-does not actually provide a definition that serves as an alternative to the administrative agency on what 'facilitate' means. Saying "Facilitate is an active verb" does not say what sort of verb, which is required for a categorical basis to say that no facilitation has occurred.

Without criteria, it would seem the only proof of facilitation the court would accept is the successful return of Garcia.

However, that would seem to contradict this position on executive versus judicial role.

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.

This claim reverses what the previous lack of specificity implies. A position that the government must facilitate the return without specifying the means is an argument of ends, not means. The court in this quotation is again not addressing what actual means are required to constitute facilitation short of achieving an ends- i.e. the return- which is, per this section, the focus of the Executive.

Put another way, the court in question is demanding an ends, without accepting there a means that legitimately constitutes facilitation but is insufficient to achieving this end. This is a direct inversion to the self-declared role of the judiciary of concerning the means, even if it frustrates the executive's ends.

Similarly, your choice of moving quotation has a notable case of bolted horses and barn doors.

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.

The answer is presumably related to the same assurance that relates to the war on terror programs taken by (both of) Trump's predecessors that allowed targeting of actual American citizens, up to and including killing them abroad, without requiring assurances that it would never happen again.

This is notably not factoring in the security state abuses against political opponents that actually did occur during previous administrations, which to my knowledge neither judge or prior administration conceded were improper, let alone offered assurances.

Now, if this judge in question would like to argue that those mean the obligation has already lost its meaning, then well and good. You cannot lose meaning if meaning was already lost. But if the judge maintains that the meaning is currently held despite prior and reoccurring abuses, the judge needs to explain why this case, which does not involve an American citizen, is more concerning than prior cases involving American citizens.

This connects to the authority and/or responsibility issue, which the court similarly doesn't actually seem to address.

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.

This is not a contradiction. The US does not have the authority to demand a sovereign state turn over its citizens to the US, absent some bilateral agreement between states enabling it. The court does not identify a basis of authority to demand sovereignty over this over El Salvador's objections. In turn, El Salvador has no legal responsibility to turn over Garcia, regardless of the US mistake in deporting him. The court does not identify any basis of a legal responsibility to turn over Garcia.

The consequence of this- that Abrego Gardia has no recourse to US law- does not imply that the US government or judiciary has jurisdiction over him. Garcia's legal prospects in El Salvador also have no implication on US legal jurisdiction. If the court wanted to cite US law that Congress passed to provided the president or even the courts jurisdiction, it certainly could... but if it can't, because no law exists, then prior court precedent recognizes the implication. When Congress can provide authorities in an area, but does not want to, that is indicative of Congressional intent.

The confusion of the limits of american national law to non-American citizens in foreign states has been a consistent theme of the critiques of the judges to date, and this is no different. Appeals to Eisenhower and a domestic internal policy issue furthers the apples-to-oranges comparison.

This is not a contradiction. The US does not have the authority to demand a sovereign state turn over its citizens to the US, absent some bilateral agreement between states enabling it. The court does not identify a basis of authority to demand sovereignty over this over El Salvador's objections. In turn, El Salvador has no legal responsibility to turn over Garcia, regardless of the US mistake in deporting him. The court does not identify any basis of a legal responsibility to turn over Garcia.

I think this whole thing stems from a common misunderstanding of the court system and how it works. There's this often understood idea of law being entirely about saying the correct magic words in the correct way to get technicalities and while it's certainly true that's a large portion of it, judges have always had the freedom to look into things a bit past that as well in determining if orders are being carried out in good faith. You can be held in contempt (and it happens pretty often) when people are caught "officially" following the rules, but admitting they aren't elsewhere.

The court system is not intended to be blindly idiotic. It's the reason why Eisenhower, despite his disagreement with the rulings actually executed on it, instead of playing games pretending to. You can still do that mind you, they tend to give lots of leeway but the court system would have to be blind to not see how the Trump admin is purposely sabotaging efforts. And again, the court system is not intended to be blind. That's part of why we have multiple judges (for example this ninth circuit ruling had three judges) and so many appeals processes to begin with, because there is room for interpretive and judicial idealogical differences.

When I can buy and carry a gun in New Jersey, or better yet any state in the union, I will listen to demands to respect the ultimate authority of the court system from the left. Not until then. Yes, Eisenhower executed on rulings he didn't like. He turned out to be a chump to do so, because it meant the left got the benefit of favorable court rulings in all circumstances, whereas the right got them only when the enforcement and the lower courts were ALSO controlled by the right.

"until the courts rule the exact way I want, I shouldn't have to respect them" is to be quite frank, anti-American. Not just in disrespecting our legal system as a whole, but in disrespecting one of the fundamental values America and western democracy is built on, the rule of law and proper legal process.

Yes, Eisenhower executed on rulings he didn't like. He turned out to be a chump to do so,

Eisenhower despite his different views on racial segregation still agreed in this fundamental principle of the American system and faithfully executed on the rulings because of that, not because he was a chump.

"until the courts rule the exact way I want, I shouldn't have to respect them" is to be quite frank, anti-American.

Many of us have spent a considerable amount of time and effort cataloguing the ways in which Blue Tribe has done exactly this for literally decades. Guns, illegal immigration, and drugs have all demonstrated the pattern of victory through sustained refusal to recognize rule of law. The comment you are replying to is pointing out that multiple Supreme Court victories over more than a decade were categorically ignored when Progressives found it convenient to do so, and so appeals to lesser court decisions in favor of progressives hold no water.

When a Tribe systematically breaks the rules, they don't get to appeal to those rules any more.

"America" is dead, and has been for some time. The current situation is not America dying, but the rotting of the national corpse.

Not just in disrespecting our legal system as a whole, but in disrespecting one of the fundamental values America and western democracy is built on, the rule of law and proper legal process.

This is probably a very persuasive argument for people who do not have an extremely long catalogue of previous "rule of law" violations to point to, and who do not have a working understanding of the phrase "manipulation of procedural outcomes" or "isolated demand for rigor".

I do not believe that Blue Tribe can credibly offer "rule of law" because I have observed them violate the principle too many times without significant consequence. Guns, drugs, illegal immigration, "no justice, no peace", tenure for communist terrorists, a long history of government corruption... the list of objections is quite long. You are appealing to phrases that lost their meaning for many people a long time ago. And maybe you are the sole remaining principled Progressive, but you are not the Pope of Blue Tribe, and if your bespoke principles do not generalize at the population level, of what use are they?

People have been pointing out for a long time that the principles you appeal to were not sustainable without significant reform. Reforms were rejected, and now those principles are no longer being sustained.

Eisenhower despite his different views on racial segregation still agreed in this fundamental principle of the American system and faithfully executed on the rulings because of that, not because he was a chump.

You will not get any more Eisenhowers, because post-Eisenhower events built durable common knowledge among Red Tribe that Eisenhower was, in fact, a chump. None of this is new; we've been debating this for about a decade at this point, and the point of view you're arguing against is supported by quite a bit of solid evidence.

When a Tribe systematically breaks the rules, they don't get to appeal to those rules any more.

"America" is dead, and has been for some time. The current situation is not America dying, but the rotting of the national corpse.

Yeah if you just make up stuff about all the evils the "enemy" is doing where they're just straight up ignoring court orders over and over then I guess it would look like the country is dead.

People have been pointing out for a long time that the principles you appeal to were not sustainable without significant reform. Reforms were rejected, and now those principles are no longer being sustained.

None of this is new; we've been debating this for about a decade at this point, and the point of view you're arguing against is supported by quite a bit of solid evidence.

Hey if Americans agree with you on this specific point, start pushing for politicians to write a new amendment! We have a process established since the founding fathers for this and it's been done 27 times already. Start a movement to electorally challenge politicians that won't cooperate with it. We're in a democracy, use your voice and convince your fellow citizens. If they don't agree, then tough shit.

Yeah if you just make up stuff about all the evils the "enemy" is doing where they're just straight up ignoring court orders over and over then I guess it would look like the country is dead.

And if I have a large amount of evidence showing Blue states and federal regimes have in fact made a habit of ignoring court orders and otherwise flouting rule of law, then would you agree that the country does in fact appear to be dead from your perspective as well?

Hey if Americans agree with you on this specific point, start pushing for politicians to write a new amendment!

What would be the point of such an approach?

I used to argue that the Constitution was whatever five Justices said it was, but now it is not even that. We won multiple Supreme Court decisions on the Second Amendment over the past few decades. Blue states and their circuit courts ignored the rulings, and then we got to observe how unified defiance from "subordinate" legislatures and courts shapes Supreme Court jurisprudence, as the Justices refuse to take cases or deliver decisions that would spark further defiance. And it's not as though Federal law worked any better. We decided that Tribal interests should be protected by law. We won elections, drafted laws, and passed them by the legitimate process. Then Blue Tribe simply ignored them, and the courts have let them do it.

Start a movement to electorally challenge politicians that won't cooperate with it. We're in a democracy, use your voice and convince your fellow citizens. If they don't agree, then tough shit.

Blue Tribe could have done this with immigration. Red Tribe offered them a compromise, an amnesty for existing illegals, paired with actual border enforcement. They took the amnesty and then not only failed to deliver any border enforcement, but spent decades actively undermining what enforcement existed and thumbing their noses at the law. They did the same with narcotics laws. They did the same with laws aimed at protecting freedom of religion.

The funniest part, though, is that you don't recognize that we are in fact following your advice. We have not rioted nation-wide. We are not actively fomenting assassins. We are not burning down the homes and offices of people we don't like. We organized and won an election, and now we are playing the game according to the existing rules.

The funniest part, though, is that you don't recognize that we are in fact following your advice. We have not rioted nation-wide. We are not actively fomenting assassins. We are not burning down the homes and offices of people we don't like. We organized and won an election, and now we are playing the game according to the existing rules.

That doesn't make any sense given the rest of your argument is "it's ok to ignore the rules".

It's also an interesting question in general, if one is so willing to abandon a principle simply because they believe others don't follow it, then was it really a principle of theirs to begin with? Perhaps those people are simply against the classic American values to begin with and they are seeking an excuse to abandon it.

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