A Fourth Circuit Judge Warns Against Reducing The Rule Of Law To Lawlessness

Thursday afternoon, the Fourth Circuit issued a decision, its second, in the Abrego Garcia case. After the district judge, Paula Xinis, ordered expedited discovery into whether the government had failed to comply with the Supreme Court’s order to facilitate his release and return to the United States, the Trump government filed a petition for mandamus. We’ve discussed this writ before. The party that files it asks a higher court to tell a lower court it’s doing something wrong and to either stop doing it or start doing something the court had declined to do. Here, the government wanted to put a stop to the fast-tracked discovery plan Judge Xinis had put into motion.

It didn’t take long for the Fourth Circuit to reject the government’s request. In fact, they ruled before Abrego Garcia’s lawyers had even filed a response. This is a 3-0 decision in a conservative circuit, with the opinion authored by J. Harvie Wilkinson III, who was appointed to the bench by Ronald Reagan in 1984. I remember his appointment very well, because it happened while I was in law school at the University of Virginia where he taught, and it put an end to my plans to take a class with him the following year. Wilkinson is a staunch conservative and a highly regarded jurist. He was reportedly on the shortlist to replace Chief Justice Rehnquist when he became ill in 2005.

Judge Wilkinson’s remarkable opinion today seems to have been written for the public as much as for the parties. It exemplifies the best part of the legal profession, of our commitment to the rule of law and justice. It’s worth a moment of time to read what he has to say, so sit down with a cup of coffee, or whatever, and remind yourself of what we aspire to be in this country. That’s what Judge Wilkinson’s opinion does for us, and I’m very grateful.

Rejecting the government’s 258-page “EMERGENCY MOTION FOR STAY PENDING APPEAL AND PETITION FOR WRIT OF MANDAMUS,” the Fourth Circuit wrote “we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.” The Trump administration’s motion claimed Judge Xinis had “crossed” a constitutional line and unleashed a “fishing expedition” in her discovery order. “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,” Judge Wilkinson continued.

Then came some unstinting criticism of the Trump administration. “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.”

He continued, in much the same vein as we discussed last night, that everyone—criminal or saint, or ordinary human; citizen or not—is entitled to due process under the Constitution. “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.” In other words, if the government thinks it’s got such good factual proof of that, what is it so worried about? It can present its proof, and it should prevail in getting Abrego Garcia removed from this country.

Then, in a burst of common sense that was apparent to constituents at Senator Grassley’s town hall early this week when they asked why the president of the United States didn’t have to obey court order, the opinion asks, “Moreover, the government has conceded that Abrego Garcia was wrongly or ‘mistakenly’ deported. Why then should it not make what was wrong, right?”

Judge Wilkinson rejects the government’s position that the Supreme Court decision in the case would “allow the government to do essentially nothing,” writing that the Court’s decision:

“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…. 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….

“Thus, the government’s argument that all it must do is ‘remove any domestic barriers to [Abrego Garcia’s] return,’…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….

“Allowing all this would…reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”

That important closing statement made, Judge Wilkinson then makes clear that he is writing to the Supreme Court, too:

“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.”

Then, the court chastises the executive branch: “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.”

Judge Wilkinson reminds President Trump of the approach taken by President Eisenhower when the Court ordered integration in America’s schools. “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.’”

The lesson? The opinion makes it plain. “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.’ Indeed, in our late Executive’s own words, ‘[u]nless the President did so, anarchy would result.’”

The restrained and eloquent seven-page decision is one that speaks to the moment we are in with so much quiet common sense and wisdom that one hopes that even if the current President lacks the judgment to abide by it, those around him, as well as the Supreme Court, will take it to heart. The opinion closes with a plea to “our good brethren in the Executive branch,” noting that it hopes “it is not naïve to believe” that they, like the court, “perceive the rule of law as vital to the American ethos.”

“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.”

“This case,” the court writes in conclusion, “presents their [the Executive branch’s] unique chance to vindicate that value and to summon the best that is within us while there is still time.”

Thursday evening, we learned that Maryland Senator Chris Van Hollen was able to meet with Abrego Garcia and satisfy himself as to his condition.

It’s a moment where we should all answer Judge Wilkinson’s clarion call to “summon the best that is within us while there is still time.” Call your Senators and Representatives (use 5calls.org and encourage friends to join you) and demand that they do so. Read or write to them and include parts of this superlative opinion. Intentionally keeping a man in a foreign prison after admitting to the Supreme Court that you made an error when you deported him is hardly the best that our great nation, steeped in the tradition of the rule of law, can do.

The courts are trying to do their part. With Congress asleep and a president intent on achieving his policy goals, regardless of their legality, it’s up to us to keep trying and doing everything we can every day. Make sure your voice gets heard in this moment.

We’re in this together,

Joyce

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