I'm used to judicial opinions and orders including some character. The really good ones are clear and concise with a touch of flair — maybe humor, maybe mild snark, maybe some scolding where warranted. Rarely, though, do they wander over into raw emotion — particularly not when it comes to a procedural ruling, like whether or not to issue a stay pending appeal.
I guess it's a brave new world, though, because not only did the Fourth Circuit Court of Appeals issue an order denying the Trump administration's motion to stay Judge Paula Xinis' rulings in the Abrego Garcia case pending appeal of her amended injunction and order of discovery, it did so with a rhetorical flourish that leaves no uncertainty about the personal feelings of its author(s) — the order is credited to Judge J. Harvie Wilkinson III, but Judges Robert King and Stephanie Thacker both join in it.
Now, to be fair, the administration's emergency motion for stay and petition for writ of mandamus has impassioned rhetoric of its own — but that's fairly commonplace for the attorneys, zealously advocating on behalf of their clients, as is their duty. Judges — particularly appellate court judges — usually play things a bit closer to the vest with an eye toward maintaining an air of impartiality. Or...at least they used to.
New: Supreme Court Issues Order on the Removal of Salvadoran National Kilmar Abrego Garcia
The full order may be viewed below, but here are some highlights (with my observations following):
Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive's robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.
Right out of the gate, they want you to know they're sticking up for their lower court colleague.
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, there is nothing that can be done.
Wilkinson's giving the game away here. That's rhetoric worthy of an MSNBC segment. And it glosses over the fact that Abrego Garcia received due process almost six years ago when it was determined he had no right to remain in the U.S. (his "residence" here being of the illegal variety) and that the government had the right to remove him. Yes, there appears to have been an administrative error that resulted in Abrego Garcia being removed to the one country (his home country) that he was not supposed to be moved to, but the determination as to his removability was long ago made by an immigration judge and upheld by the Board of Immigration Appeals. And yet Judge Xinnis (and, it would appear, this Fourth Circuit panel) is apparently under the impression that it's within her jurisdiction to not only revisit that determination, but order the executive branch to go retrieve a subject-to-deportation Salvadoran citizen from El Salvador and bring him back to the U.S., despite the fact that the Supreme Court gave a pretty clear hint that this is not, in fact, so.
Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
Has it, though? Because I'm pretty sure the government has steadfastly maintained it had the right to deport Abrego Garcia while acknowledging that he wasn't supposed to be sent to El Salvador. Last I checked, that leaves open roughly 190 other countries he could have been deported to. (Okay, some — maybe many — of them may not have agreed to take the Maryland hot potato, but is the argument from Abrego Garcia — and his judicial advocates — that he'd be just fine had he been deposited in Honduras or Guatemala rather than his home country? Because I don't get the sense they'd concede that.)
Referencing the Supreme Court's decision as the guidepost and the deference due the executive, Wilkinson notes:
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.
(Which, of course, the Supreme Court's ruling did not command.) And then, in the next paragraph, he contradicts that, acknowledging that the ruling 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.”
I will say that in the middle of the ruling — which, again, mind you, is simply denying a stay of the case pending appeal — Wilkinson gives, in my view, a fair nod to the inherent tensions between the Article II and Article III branches. But then he runs pell-mell down the slippery slope with this:
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?
Again, there's no acknowledgment that Abrego Garcia received due process...in 2019. There's no acknowledgment that he is not an American citizen, but rather a Salvadoran national whose case has already been adjudicated. It just hadn't been acted on before now. This case isn't about the executive branch targeting its political enemies (let's note the rich irony there). It's about an illegal alien who'd been in the country illegally for 14 years and who'd already been ordered removable.
And finally, to wrap up his magnum opus, Wilkinson really lets it fly:
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.
And, shoot, even I want to stand up, place my hand over my heart, and wave Old Glory at that. Except for the part where Wilkinson implies that the burden rests solely with the executive to vindicate the rule of law, when it is Wilkinson's own judicial brethren who've mistaken their black robes for capes and their mission to thwart the executive at every turn because this one happens to be named Trump.
gov.uscourts.ca4.178400.8.0_1 by Susie Moore on Scribd
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