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Smackdown from the 4th Circuit Court of Appeals [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-04-18
s3.documentcloud.org/…
I don’t have much to offer in addition to this opinion, authored by a Reagan appointee, other than a hope that the judiciary will, in fact and deed, stop our current march into fascism.
KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZ
SURA; A.A.V., a minor, by and through his next friend and mother, Jennifer
Vasquez Sura,
Plaintiffs – Appellees,
v.
KRISTI NOEM; TODD LYONS; KENNETH GENALO; NIKITA BAKER;
PAMELA JO BONDI; MARCO RUBIO,
Defendants – Appellants.
…It is difficult in some cases to get to the very heart of the matter. But in this case, it
is not hard at all. The government is asserting a right to stash away residents of this country
in foreign prisons without the semblance of due process that is the foundation of our
constitutional order. Further, it claims in essence that because it has rid itself of custody
that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that
Americans far removed from courthouses still hold dear.
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. § 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?
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.
“Facilitation” does not permit the admittedly erroneous deportation of an individual
to the one country’s prisons that the withholding order forbids and, further, to do so in
disregard of a court order that the government not so subtly spurns. “Facilitation” does not
sanction the abrogation of habeas corpus through the transfer of custody to foreign
detention centers in the manner attempted here. Allowing all this would “facilitate” foreign
detention more than it would domestic return. It would reduce the rule of law to lawlessness
and tarnish the very values for which Americans of diverse views and persuasions have
always stood.
The government is obviously frustrated and displeased with the rulings of the court.
Let one thing be clear. Court rulings are not above criticism. Criticism keeps us on our toes
and helps us do a better job. See Cooper v. Aaron, 358 U.S. 1, 24 (1958) (Frankfurter, J.,
concurring) (“Criticism need not be stilled. Active obstruction or defiance is barred.”).
Court rulings can overstep, and they can further intrude upon the prerogatives of other
branches. Courts thus speak with the knowledge of their imperfections but also with a sense
that they instill a fidelity to law that would be sorely missed in their absence.
“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423
(1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from
its lassitude and recalibrate imbalances too long left unexamined. The knowledge that
executive energy is a perishable quality understandably breeds impatience with the courts.
Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive
Branch’s breakneck pace.
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.
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.
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.
The basic differences between the branches mandate a serious effort at mutual
respect. The respect that courts must accord the Executive must be reciprocated by the
Executive’s respect for the courts. Too often today this has not been the case, as calls for
impeachment of judges for decisions the Executive disfavors and exhortations to disregard
court orders sadly illustrate.
∗ See, e.g., Michelle Stoddart, ‘Homegrowns are Next’: Trump Doubles Down on
Sending American ‘Criminals’ to Foreign Prisons, ABC NEWS (Apr. 14, 2025, 6:04 PM);
David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons,
FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).
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.
Now the branches come too close to grinding irrevocably against one another in a
conflict that promises to diminish both. This is a losing proposition all around. The
Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent
of custom and detachment we can only sparingly reply. The Executive will lose much from
a public perception of its lawlessness and all of its attendant contagions. The Executive
may succeed for a time in weakening the courts, but over time history will script the tragic
gap between what was and all that might have been, and law in time will sign its epitaph.
It is, as we have noted, all too possible to see in this case an incipient crisis, but it
may present an opportunity as well. We yet cling to the hope that it is not naïve to believe
our good brethren in the Executive Branch perceive the rule of law as vital to the American
ethos. This case presents their unique chance to vindicate that value and to summon the
best that is within us while there is still time.
In sum, and for the reasons foregoing, we deny the motion for the stay pending
appeal and the writ of mandamus in this case. It is so ordered.
For the Court
/s/ Nwamaka Anowi, Clerk
[END]
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