The Fourth Circuit’s Opinion in the Abrego García Casea line-by-line reading

This post is part of a series, Line by Line.

The latest court opinion in the case of Kilmar Armando Abrego García, the El Salvador national who had an immigration order against deporting him back home, but got flown from the United States and put in the CECOT prison anyway, is one I’d encourage more people to read. The judge clearly took time to put a lot time in to write for people not mind-warped by legal education. But the format and conventions of court docs can put people off. Here’s a line-by-line, giving my own thoughts along the way.

I not an immigration lawyer, or even a lawyer who handles court cases. I advise and negotiate outside court, and pride myself on keeping clients clear of those places. It’s still part of my job to follow and understand what the courts are doing, especially the written decisions of judges that come out of them. But it’s not any part of my day-to-day to know all the twists and turns of court procedure, much the less the state of the metagame in any particular area. Still, I’m hardly the only lawyer peering over to follow this case.

If you’re already up to date on the Supreme Court’s rulings, you can jump right to the line-by-line of the opinion.

If you’re short on time, but want the context, skip the front matter and go right to the order.

Header

Filed: April 17, 2025

United States Court of Appeals for the Fourth Circuit

The hierarchical structure of US federal courts has three major levels: district courts, circuit courts, and the Supreme Court. The middle-tier courts are called “circuit courts” because judges used to travel around, or “ride a circuit”, to hear appeals from cases of the district courts within a given territory. These days circuit court judges mostly stay put, working out of their own permanent courthouses.

The Court of Appeals for the Fourth Circuit covers federal districts in the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Abrego García lived and was arrested in the District of Maryland, and he sued in federal district court there.

District courts are trial courts. That’s where people submit papers for start lawsuits, submit evidence, hold trials, and get decisions.

No. 25-1404

(8:25-cv-00951-PX)

These are tracking numbers for the case. The first is from the Fourth Circuit, for the appeal. You can use the second, longer, -cv- number to track the case as it bounces around between different courts and levels of the system. My favorite repository is Court Listener, whose page for the case is here. The official government site is PACER, but it’s shamefully pay-gated and stubbornly baffling to use.

Parties

After the numbers come the names of the parties—the two sides of the lawsuit.

Kilmar Armando Abrego Garcia;

one of the Salvadoran nationals deported to El Salvador

Federal courts, their secretaries, and their case management systems still haven’t figured out how to type diacritics, but some are getting better at Spanish-style surname conventions. So no “García”, con acento, but we’ll see him called “Abrego Garcia” below.

Jennifer Stefania Vasquez Sura;

Abrego García’s wife

It’s written Vásquez in Spanish. On that, I’m done.

A.A.V., a minor, by and through his next friend and mother, Jennifer Vasquez Sura,

It’s typical for minor children and some other categories of vulnerable people to be named with pseudonyms or initials in court documents.

Plaintiffs – Appellees,

This was the list of people who brought the lawsuit. So in that lawsuit, down in the federal district court, they are the “plaintiffs”, on the legal offense. But in this appeal to the Fourth Circuit above, they are “appellees”, on the defense. The government wants the appeals court to overturn what the trial court did. Abrego García, his wife, and his daughter, through their lawyers, want it upheld.

v.

We’ll see the relevant hierarchy of the federal executive branch on the other side:

Kristi Noem;

currently serving United States Secretary of Homeland Security, head of the U.S. Department of Homeland Security

Todd Lyons;

acting Director of U.S. Immigration and Customs Enforcement, or ICE, an agency under the Department of Homeland Security

Kenneth Genalo;

acting Executive Associate Director of Enforcement and Removal Operations, ICE

Nikita Baker;

acting Field Office Director for ICE in Baltimore, Maryland, where Abrego García lived and was arrested

Pamela Jo Bondi;

serving United States Attorney General, head of the Department of Justice, where lawyers representing the federal government work

Marco Rubio,

serving United States Secretary of State, head of the Department of State responsible for foreign relations

Defendants – Appellants.

These were the “defendants” at the trial court level, since they’re the ones who got sued. But they’re the “appellants” at the appeals court level, since they’re the ones asking to overrule the district court.

Type

Order

Courts and judges turn out a few different kinds of documents. This is an order. The court is ordering something be done.

Judges

Next comes the bit identifying who is doing the ordering. And the writing that goes with it.

Wilkinson, Circuit Judge,

James Harvie Wilkinson III, 80 years old, appointed by Ronald Reagan to the Fourth Circuit in 1984, chief judge there since 1996

with whom King

Robert Bruce King, 85 years old, appointed by Bill Clinton to the Fourth Circuit in 1998

and Thacker,

Stephanie Thacker, 59 years old, appointed by Barack Obama to the Fourth Circuit in 2012

Circuit Judges, join:

So Wilkinson authored the order, but King and Thacker agreed with it and cosigned it. There may have been feedback or other collaboration between them, behind the scenes, but it comes out under Wilkinson’s name.

Three judges considering an appeal as a group are called a “panel”. Sometimes, one of the judges will agree with the decision they take as a group, but for different reasons, and file a separate opinion called a “concurrence” that gets tacked on after the main opinion. Sometimes one of the judges will disagree with other two and file a separate opinion called a “dissent” that also gets tacked on. We don’t have any concurrence or dissent on this decision. All three judges on the panel signed on to Wilkinson’s decision and his writing about it.

Order

¶ Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus.

Alas, our first course is a jargon salad. As we’ll see, it’s traditional to start and end an order like this with succinct but cryptic sentences saying what the court is ordering, in the bureaucratic language of the lawsuit game. We’ll power through now, then things will get a lot easier.

A motion is a document filed by one side or the other in a lawsuit, asking the court to do something. There’s a whole decision tree of what motions who can file when. That’s “legal procedure”.

In this particular appeal, the government filed the motion. They asked for “emergency stay” of an order by District of Maryland trial court judge Paula Xinis, appointed by Obama in 2016. That order required the administration to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 on Monday, April 7, 2025”.

Essentially, the government asked the appeals court to press pause on that order while they argue that it’s legally wrong. They also want another order from the appeals court down to the lower court, a “writ of mandamus”, canceling, or “vacating”, a different trial court order giving Abrego García and family access to documents and evidence from the government to help prove their case, a process called “discovery”.

Three judges for the Fourth Circuit said no. Why?

Background: Supreme Court Decisions So Far

The Supreme Court has given three decisions on the deportations to El Salvador now, one specifically in Abrego García’s case before Xinis. It’s worth reviewing them all very briefly. All district court and circuit court judges are bound to follow these decisions from the higher court, which can hear appeals of their decisions and overrule them.

These decisions have also been subjects of some of the most depressingly lazy and slanted news coverage I’ve seen in a long time. Partly this is down to the press just doing what it usually does on legal stories, now on some more particularly important ones. Partly this is down to the Supreme Court playing subtly. But only very partly.

How to Sue to Fight Getting Deported

The Supreme Court’s first, April 7 decision came in a case before before James Boasberg, 62, appointed by George W. Bush to the superior court in DC in 2002, then by Obama to the federal district court for DC in 2011, who made news for ordering the government to turn the planes back to the USA. The Supreme Court’s order runs only four pages, not counting the separate, individual opinions tacked onto the back of it. My takeaways were:

1. The deportees brought their case to the Supreme Court in the wrong legal way. They should have used “habeas corpus”, which we’ll get to later.

   This didn’t seem legally wrong to me, but fits nicely into a long pattern of federal courts avoiding direct conflict with other branches of government by finding narrow, technical ways to decide cases with much broader implications. There was a good law review article about this back in 2018. It’s really long, but its key points get covered in the abstract.

2. Since they were held in Texas at the time these detainees sued, they should have sued in Texas, not in DC.

   This vindicated the government’s apparent “forum shopping” strategy of arresting people all over and immediately transferring them to Texas. Federal districts in Texas are under the Fifth Circuit, where the government expects judges to rule in its favor more often.

3. People the government wants to deport under the Alien Enemies Act, the legal power Trump gave for deporting to El Salvador, have to be notified and given a chance to sue—in the right way, in the right court—to stop it.

   In other words, due process still applies, even though the Alien Enemies Act gives the president a lot of power to deport.

How to Order the Government to Bring Somebody Back

The Supreme Court’s decision in Abrego García’s case came just a few days later, on April 10. The prompt was the government’s request to throw out the order of the Maryland district court judge ordering the government to “facilitate and effectuate” his return. My takeaways:

1. The Supreme Court acknowledged that the judge’s deadline for returning Abrego García had already passed by the time they got around to deciding. But they specifically left the rest of the order, minus the deadline, in place.

2. “The order properly 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.”

3. The word “effectuate” in the lower court’s order, on the other hand, needed clarification, to avoid overstepping into the executive branch’s role.

   This is what we call a “separation of powers” issue. The courts can order agencies and officers to follow the law, but it can’t take over actions or decisions that the law leaves to other parts of the government.

4. “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

   This left open the possibility of ordering the government to report on progress, as well as to sanction for failure to follow that order. That is now a live-fire issue in the first case the Supreme Court ruled on, in DC.

I’m not an expert in immigration law, or even in litigation. But I’d long ago gathered it’s standard to leave an order like Xinis’ in place while it’s appealed. The general idea is that the judge on the front line, running the trial in the district court, gets latitude to manage the process, keep things on track, and make initial decisions. If a trial court gets an order wrong, an appeals court can correct it. But until they do, those on the receiving end must wait, obey, and respect the process. Appeal is about correcting orders, not requiring higher-level sign-off for them in the first place.

This is related to another hot legal issue since Donald Trump’s inauguration: the ability of federal trial court judges to rule that government actions are unconstitutional or otherwise illegal and order the government to stop, not just within the district where their court is, but all throughout the country. Your search term there is “nationwide injunctions”. An injunction is a kind of court order to one of the sides in a lawsuit: do this, don’t do that.

Midnight Order to Pause More Deportations

Finally, there was yet another Supreme Court decision over this weekend, in a new case. This case was brought out of Texas on behalf of more detainees, this time in the legal way the Supreme Court earlier said was the right one, habeas corpus. Pushing midnight, the Supreme Court issued a short order, without any written explanation, prohibiting the government from deporting any detainees falling into the “class”, or open-ended group, that the suit was brought on behalf of. Clarence Thomas and Samuel Alito disagreed and later published a dissent.

Note that the Supreme Court made this order after the Fourth Circuit wrote and published the order we are reading here together. I include it just to make this list complete, for now.

We’ve got the Supreme Court context. Now we’re ready to for the meat of the Fourth Circuit’s order in the Abrego García case.

Opinion

The government asked the appeals court to overturn the district court’s order to “facilitate” and “effectuate” returning Abrego García, as well as its order to make the government share evidence for his lawsuit against the government. As we saw in the first, jargon-leaden sentence of that order, the Fourth Circuit said no. The government lost. Now comes the reasoning.

The relief the government is requesting is both extraordinary and premature.

“Relief” here means “what they are asking the court to do for them”.

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.

Article II of the US Constitution is the big part covering the powers of the executive branch, led by the president. Congress and the judiciary have their own articles, too.

The appeals court calling the district court judge below a “fine district judge” is a clear response to recent public criticism of judges by the president and his allies. John Roberts, the chief justice of the Supreme Court, took the rare step of responded more directly, and publicly, after calls to impeach Boasberg for his order to turn planes around, in the first case the Supreme Court ruled on.

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 is unusually direct, serious language for an appeals court ruling. I read a judge who is trying to pierce through legalese to write something he expects will be read and quoted beyond the usual audience of lawyers and specialists.

“Rid itself of custody” here refers to the government having handed Abrego García off to Salvadorian authorities in El Salvador.

¶ This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Candidly, this is why this particular companies-contracts-privacy-security-IP lawyer has been following the paperwork on these cases.

¶ 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.

I read this as a direct response to the efforts of the presidential administration to “try him in the press”: repeatedly saying that he is a member of MS-13, holding pressers about him, publicizing the paper trails of his immigration process and domestic drama.

One of the benefits of trying someone in the press is lower standards of evidence. You can show and tell things that would never fly in court. You don’t even have to argue the same questions.

Even if the government had already proven to a jury, beyond any reasonable doubt, that Abrego García was a gang member and a criminal, even if he’d admitted all that under oath, he’d still be entitled to due process of law. There’s nothing in the Supreme Court’s decisions that separates Abrego García, who was or wasn’t a gang member, from those who were, proven or unproven. Everybody gets 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).

The judge made an effort to write plainly above, but seems to lapse back a bit here. In American English, I’d put it so: “If the government’s so sure it can prove Abrego García’s a terrorist and an MS-13 member, it should go to immigration court, prove it, and get the order it violated against deporting him back to El Salvador canceled”.

“8 C.F.R. § 208.24(f)” is a legal citation, a weird shorthand layers use to refer to other documents. This one refers to the Code of Federal Regulations, Title 8, Section 208.24(f). The Code of Federal Regulations is where the federal government compiles all the various regulations written by agencies.

“Preponderance of the evidence” is a legal term for one of the “standards of proof”, vague but extremely important ideas about how strongly one side or the other of a lawsuit has to prove its case to get a judge or jury to rule in its favor. “Preponderance of the evidence” is the lower standard used by the courts. Criminal courts use the higher “beyond a reasonable doubt” standard, as required by the Due Process Clause of the Constitution.

The implication here is that the government wouldn’t even have had that hard a case to make to get the order against deporting Abrego García overturned. It would have been on legal Easy Mode, not Hard Mode, as if it were charging him with a crime.

Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?

A Justice Department lawyer admitted both in court and in a filing that ICE deported Abrego García despite knowing about its order against deporting him to El Salvador. That lawyer, Erez Reuveni, was soon suspended for not “zealously advocating”, lawyer speak for not playing tough enough.

¶ The Supreme Court’s decision remains, as always, our guidepost.

This is preemptive self-defense. The government seems intent on appealing every chance it gets. All paths up lead to the Supreme Court.

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).

The string of names, abbreviations, and numbers is another legal citation. The first pointer is to the Supreme Court’s decision in this case, specifically page 2 of it. Then there’s another, to an older Supreme Court decision about the president’s foreign policy role and powers.

“Slip op.” stands for “slip opinion”. That’s how lawyers cite recent court opinions that haven’t been been bound up in the big books, or “reporters”, that decisions get formally published in. Think preprints, but in the legal system. The reporter for Supreme Court decisions is “United States Reports”, abbreviated “U.S”. The older Curtiss-Wright decision was published in volume 299 of United States Reports, starting on page 304. It was decided in 1936, the number in parentheses.

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.

All this points back to the Supreme Court’s requirement that courts be careful ordering the government to “effectuate” getting Abrego García back out. By pointing out the freedom of choice and action the government still has while following the order, it makes the point that the courts aren’t trying to micromanage the executive branch, as if by remote control.

¶ 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.

On theme of following the Supreme Court’s say-so, citing it again.

“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 meanings of words can always be argued, but courts have rules for that, too. Not all arguments are good legal arguments.

The “supra” in the citation just means “cited already above”.

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.

A very lawyerly sentence. Playing interpreter again, I might put this as “We can’t read the plain, broad, active word ‘facilitate’ in some weaker, more specific legal way.”

Lawyers call words and phrases with special meanings in law “terms of art”. Sometimes these words have meaning in everyday English, too, but also different meanings in law. For example, while “consideration” usually means thinking about something, in contracts law it refers to a basic rule that courts will only enforce private deals where both sides gave and took.

Speaking of multiple meanings, the court might have meant “construction”, a term of art for “how judges interpret words”, rather than “constriction”. But constriction makes sense, too.

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).

“ICE can’t tell us how to read the word in a press release.”

Loper Bright was a very recent Supreme Court decision overturning a rule called “Chevron Deference”. Chevron Deference told courts to listen to agencies’ readings of ambiguous laws in many circumstances. That was a long-sought result for many Republican-affiliated interests, and one I wouldn’t have expected without Republican nominees becoming the majority on the Supreme Court. The big political implications have been in regulation, such as environmental regulation. But it’s a huge change to a fundamental rule with application across tons of laws and agencies.

Citing it here, on immigration, could be read as a bit of zinger. Also more demonstration that they’re following the Supreme Court, not running rogue.

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.

“Mot.” stands for motion. The citation is to the document the government filed asking to overturn the district court’s order.

Note the emphasis on the Supreme Court again. The Supremes got to be very subtle in their writing. They didn’t have to spell out direct do-this-do-that commands to the government afresh and sign them, just leave what the trial court wrote “in effect”, with some notes. But it’s no stretch to say the Supreme Court gave the government a command. That was the effect of their words.

¶ “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.

Very pointed now.

“Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here.

Repetition—“anaphora”—for emphasis.

“Habeas corpus”, the way the Supreme Court said detainees need to sue to stop getting deported under the Alien Enemies Act, is an ancient, bedrock legal right to challenge being held or imprisoned by the government. Article I of the Constitution prohibits Congress from suspending it “unless when in Cases of Rebellion or Invasion the public Safety may require it”. Wikipedia has an extensive entry on its history in the United States, including the few times it’s been suspended, most notably during and after the Civil War.

Allowing all this would “facilitate” foreign detention more than it would domestic return.

Clearly tired of games about “facilitate”.

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 first of a few huge, unironic statements of broad principle. Most lawyers, even many judges, serve entire careers seemingly a long way off any case where this could be written without seeming over-dramatic.

I try to imagine writing in this case, as a federal judge over 80 years old.

¶ 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.”).

Cooper v. Aaron was the Supreme Court decision in the Little Rock Nine public school racial integration affair after Brown v. Board of Education. The syntax of the citation marks the quote in parentheses as coming from the court’s opinion in Cooper.

Court rulings can overstep, and they can further intrude upon the prerogatives of other branches.

They can step on the toes of Congress and the Executive, doing what the Constitution leaves up to them, rather than the courts. Separation of powers again.

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.

The idea that the senior judge of a federal appeals court is thinking about a nation without courts is deeply unsettling.

¶ “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.

Getting a little lofty now.

“Lassitude” means tiredness or weariness. Borrowed from French. Like “plaintiff”, “defendant”, “appellant”, and “appellee”.

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.

I’d venture to guess Wilkinson isn’t only referring to the Trump administration here. He’s been an appeals court judge more than forty years.

¶ 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.

There’s a kind of mirror-image view here of the Supreme Court’s picking at “effectuate”. One response to charges that the courts are overreaching into executive business is that the courts are only ordering what has to be done, not how to do it. Go get Abrego García out. Take your pick of “options in the execution”—ways of getting it done. Keep negotiations secret if you want to.

¶ 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?[Footnote]

Footnote: 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).

When it comes to basic legal rights, there is always a latent risk of further, more serious abuse. It takes the form of a slippery-slope argument, which is a relatively weak form, but one also rich in grim historial precedents. Drama put it perhaps better than life in the famous devil dialogue of Bolt’s A Man for All Seasons. We are about to get it again, from a senior federal appeals judge.

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.

“And, when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?”

¶ 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.

Calling out the runaround.

¶ 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.

“Get what you give.”

¶ 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.

C-SPAN has their recording of the address on YouTube, if you’re interested.

¶ 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.

I think “dent” should be “dint” here, personally, but that’s courts moving quickly for you. All of this has happened at remarkable speed.

¶ 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.

Skirting the term “constitutional crisis”. I share a kind of allergy to that term. It’s way more clear that it means “big drama” than anything more specific. It’s more igniter than useful fuel. Authors writing earnestly about it nearly always define it some new way, for themselves, if they don’t just avoid it altogether. But I’m not aware of a better term for irreconcilable conflicts between branches of government.

The point above was “get what you give”. The court seems to follow that rule in deed, by ruling against the administration haranguing it. But in word, it offers an olive branch here.

A huge open question, hardly legal, here: How will those meant to receive the offer read it? As an “opportunity”? Or only as a sign of weakness?

¶ 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.

The traditional procedural sign-off, mirroring the summary at the top.

For the Court

/s/ Nwamaka Anowi, Clerk

“/s/” is for “conformed signature”. It’s the law’s way of showing in type that a signature appears here in the original. In this case, the court clerk’s.

Thoughts

You’ve read this post for the court’s words, not mine. But the point is where we go from here, what we think about it.

I can follow all the docs and read them carefully. I can’t pretend to guess all the whys, all the motives, on any side.

Still, it strikes me that the government presented this issue in a very particular way. It looks like a production of impact litigation—the planning of legal cases and arguments for the purpose of changing public policy, not just winning particular fights. Whether by accident or design, it’s the dramatic evil twin of the “perfect plaintiff” civil rights suit, where activists purposed to find and sue for the most sympathetic victim possible, using their story to make the case for rights for all.

For one, this is all tangled deep in knotty legal process, largely as a result of how fast the government moved and how fast the courts had to move to keep up with it. The latest Supreme Court order came out at midnight with no attached explanation. That makes the substance hard to see, tempting even judges trying very hard to speak plainly and directly back into native gobbledygook. And it might yet get worse if the administration keeps defying orders and ends up in contempt. If you think “facilitate” versus “effectuate” gets technical, wait ‘til see you what the headline mongers do with “can the president pardon civil contempt?” or “does the Appropriations Clause let courts fine agencies big money?”

I also struggle to think of an area of law that commands less respect, from all sides, than immigration. Tax, perhaps. We’re seeing politicization there, too.

As for the people, can you think of a group commanding less public sympathy right now than hundreds of Central American immigrants, tarred as violent foreign gang members, forcefully made to look all the same, crammed into a four-story cage, and stood up, shirtless, as backdrops for photo ops?

Clearly, the decision to round men up in mass, flood the media with conclusive assertions they are gang members, and deport them to a foreign prison with a practiced media team was intentional. Their sheer number defies individualization and empathy. It likely still does, for the vast majority of the hundreds flown away.

But one, Abrego García, fell out of the bundle. Because his lawyer acted blindingly fast, suing in Maryland before they moved him to Texas. Because his wife, a citizen and confident English speaker, took to the press. Because the government had ordered itself specifically not to send him back, did anyway, and had to admit it.

A fearsome PR war is being waged to stuff Abrego García back into the group, to dissolve his story in the acid bath of demonized company: just another gang member, one of the horde. But even accepting gang-or-no-gang as the point to be won or lost diverts from the issue that matters.

There is no “law enforcement says they’re bad” exception to due process of law. Due process exists, and matters, precisely for when you’re accused, to force higher standards of argument, evidence, and proof between the will to point a finger and the power to impose consequences. It’s a bulwark between arbitrary will and the awful powers of the state.

If you’ve made it this far, you’ve read one far more qualified judge and one far more qualified playwright say that already, in their own words. But our greater point, I think, is that we hope and pray you never needed to hear it from us in the first place.

The need for these high standards cries out not just from the sadder pages of history, but from your own sore memories of times you were wrongly judged or punished out of malice, callousness, laziness, or haste. This isn’t a kernel of wisdom that grew out of law. It’s one that’s been entrusted to it.

Law is just when it administers those better standards. Law is loyal when it reminds us of our own better wisdom.

These cases are far, far from over.

Your thoughts and feedback are always welcome by e-mail.

back to top — edit on GitHub — revision history