Yesterday, the Department of Justice filed in the Fourth Circuit an emergency motion for a stay pending appeal of the district judge’s revised order directing the Trump administration to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” In a seven-page order today by esteemed Reagan appointee J. Harvie Wilkinson, a Fourth Circuit panel has resoundingly rejected DOJ’s request as “both extraordinary and premature.” Some further excerpts (some citations omitted):
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….
The Supreme Court’s decision does not … 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.” “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. 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….
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.
I’ll add that the first two paragraphs of DOJ’s motion read as if they were edited by White House deputy chief of staff Stephen Miller.
No, the Constitution does not give the president “the exclusive power over foreign relations,” and the Supreme Court did not “reaffirm[]” that unsound principle in Abrego Garcia (see my point 4 here).
No, the district court did not order the Trump administration to “force” El Salvador to return Abrego Garcia.
No, Abrego Garcia’s right against a concededly illegal deportation does not turn on whether he is a really bad guy.
No, the district court has not taken any action “to press-gang the President or his agents into taking any particular act of diplomacy.”
No, the Supreme Court’s order cannot plausibly mean only that the Administration “must remove any domestic barriers to the alien’s return.” (Emphasis in original.)