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PaperclipPerfector  15d ago (text post)   32179 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.

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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