A JUDGE'S WARNING

Excerpts from the April 17 opinion of J. Harvie Wilkinson III, chief judge of the U.S. Fourth Circuit Court of Appeals, addressing the Trump Administration

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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. The government asserts that [Kilmar] Abrego Garcia is a terrorist anda member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. 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.” 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.”

“Facilitate” is an active verb. 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.