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PaperclipPerfector  18d ago (text post)   32267 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?

Lucky for us that was provided "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)."

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

From a legal perspective, yes. There's a reason why the courts (including this Reagan appointed Bush supported conservative judge) have been so consistent here.

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?

This is just a fundamental misunderstanding of government. Due process applies to government taking action, it is a limit on the ability of government to do what it pleases to people in its jurisdiction.

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?

Courts are lenient, but they are not intended to be blind. They can easily see through the obvious and barely hidden ruse that if Trump really wanted to, he could help facilitate Garcia's return quite easily. One easy way to help for instance would be to stop paying El Salvador to hold him there.

This isn't unique to the Trump admin, judges have always been able to consider a wider context in their decisions. This can even happen with normal citizens in criminal/civil court. There is a reason why the Supreme Court ruled 9-0 on this, despite judicial disagreements they're all seasoned experts just like Wilkinson and they understand this well.

Lucky for us that was provided "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)."

So if they do this tomorrow via zoom call, you're going to switch sides on the debate and boldly battle the people claiming that bad things have happened?

From a legal perspective, yes. There's a reason why the courts (including this Reagan appointed Bush supported conservative judge) have been so consistent here.

I'm excited just imagining all the consistency!

Due process applies to government taking action, it is a limit on the ability of government to do what it pleases to people in its jurisdiction.

The government took many actions that it pleased to people in it's jurisdictions in facilitating the 10-30 million.

One easy way to help for instance would be to stop paying El Salvador to hold him there.

Do we have any evidence that this is the case beyond Van Hollen claiming that the ES VP told him this? Given the TdA people we are paying for, that seems like a situation with a high likelihood for misunderstandings.

So if they do this tomorrow via zoom call, you're going to switch sides on the debate and boldly battle the people claiming that bad things have happened?

It might be surprising to hear that some people care about the rule of law instead of just partisan "Lawbreaking I agree with = good, lawbreaking I don't like = bad" but yes.

I recommend looking up people like John Locke and William Blackstone to get a basic idea of the foundational values our modern western legal system operate on.

Great. I'm sure you have a large backlog of posts making this same point at progressives, right? Are you familiar with the concept of an "isolated demand for rigor"?

Are you implying that you a stranger, not knowing everything I talk about by the nature of being a complete stranger have any means whatsoever to accuse me of hypocrisy here?

If you're gonna argue with the made up vision of other people you don't know that you have imagined in your head, then enjoy yourself.

Just for the record, going to someone's userpage by clicking on their handle does, in fact, allow you to see everything that person's posted on theMotte. Also, theMotte is small enough that some people (though not me) do read basically everything.

That's still incredibly flawed to assume reading through my limited postings on a single website make you meaningfully less of a stranger who does not know me or what I believe/have previously done.

This is no excuse to conjure up an imaginary strawman of a conversation partner and make unfounded allegations against them because of the mismatch between reality and strawman.

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Unless they have a private account of course, which I've noticed is never a good sign.

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