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PaperclipPerfector  16d ago (text post)   32200 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.

I suppose I'm just not enough of a lawcuck to understand why this is being blown up into such an ordeal. The guy is an El Salvadorean citizen, was not in the US legally, and could have been deported to any country (besides El Salvadore) and then, from there, immediately deported again to El Salvadore and this would have somehow been fine. But because some braindead or politically captured bureaucrat rubber stamped his paperwork where he claimed he'd be in danger if he returned to his own country they granted a targeted stay of deportation, which precipitated this entire clusterfuck.

The guy was married to a US citizen ("Jennifer Vasquez Sura", okay...) who had filed a restraining order against him. Not exactly Elite Human Capital. The wife had two children from a previous relationship who are "disabled". Garcia's own child is also "disabled". This context is supposed to engender some kind of sympathy, I suspect, but as someone who actually interacts with people of this socioeconomic strata I am more inclined to believe they were scamming government benefits, and the wife's current PR blitz is a consequence of her smelling blood in the water chasing a fat legal payout.

I will freely concede that it would be alarming if the Trump administration deployed this "strategy" to consign innocent American citizens to a third world gulag without legal recourse or due process, but I don't think Trump is "based" enough to do that. (No, the off-hand comment he made to Bukele about sending "homegrowns" does not count, as it was clearly about -- legally -- sending convicted criminals to serve out their sentences more cheaply than can be done domestically.) This attempt to force the executive to (presumably, temporarily) return one particular illegal comes across as political theater and legal chicanery. Frankly I'm hoping Trump makes a show of retrieving Garcia on Air Force One, landing in the US for a photo op, then clasping him in chains and loading him back on the plane, to dump him in Argentina or somewhere else -- from where he'll be repatriated straight into El Salvadore's "black site prison", hopefully for life.

There was some minor procedural error, therefore we must make an elaborate show of correcting it, at great expense, to achieve an outcome that will immediately collapse back to the current status quo. This is your brain on legalism.

Do you not believe the woman he married is a "US citizen"? What basis do you have for that?

You seem to have strange assumptions about people's state of mind when the first thing you think of when someone engages in PR to help return a family member from a notoriously violent prison to the country they were illegally deported from is that they are "chasing a fat legal payout" instead of maybe wanting to help out their family member who had an injustice done to them. Of course her children having quoted "disabilities" is further evidence for this somehow, alright.

This attempt by the executive to pay to imprison a man in a foreign country after making an administrative error that they now refuse to admit is what actually comes across as theater and (il)legal chicanery.

Apparently it is "my brain on legalism" to demand due process and rule-following from the authority that governs everyone's lives and controls untold power. The founders would be seizing in their graves.

You seem to have strange assumptions about people's state of mind when the first thing you think of when someone engages in PR to help return a family member from a notoriously violent prison to the country they were illegally deported from is that they are "chasing a fat legal payout" instead of maybe wanting to help out their family member who had an injustice done to them. Of course her children having quoted "disabilities" is further evidence for this somehow, alright.

Did you miss the details where the wife in question filed a restraining order against him for repeatedly beating her to the point of injury? That seems to have ended in dismissal when she didn't show for the final hearing, so maybe she was just playing games.

Apparently it is "my brain on legalism" to demand due process and rule-following from the authority that governs everyone's lives and controls untold power. The founders would be seizing in their graves.

"Brain on legalism" is a nice way to say "I think a lot of people are full of self-serving shit". Are you one of the three genuinely principled civil libertarians who is also routinely incensed at, e.g., Democrat governors blatantly ignoring court orders regarding the 2nd Amendment?

Are you one of the three genuinely principled civil libertarians who is also routinely incensed at, e.g., Democrat governors blatantly ignoring court orders regarding the 2nd Amendment?

There are two more?!?!?! tears of joy

Then you recognize that we have not in fact been operating under "rule of law" previously?

Do you believe that enforcing "rule of law" here will increase its enforcement elsewhere? If so, why do you believe that?

If you do not believe that, why is one form of selective "rule of law" preferable to another?

Surely the only way to increase the enforcement of the rule of law is to... increase the enforcement of the rule of law? I very much understand and support advocating for the full rule of law in all spheres of life, but if you want to do that, you should, well, do that. Which would include advocating for it here. It's not hard.

No, this just ends up with rule of law being selectively used to constrain those who accept this argument, while not constraining actions against them. That's what I mean by "chump".

So I understand "they defected so we have to defect". That's what you have to do if you're stuck in a Prisoner's Dilemma with a repeat defector.

But the question then is - how do we get out of this mutual defection spiral?

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