Warning that the executive branch’s claims should shock “the intuitive sense of liberty” of Americans, a panel of judges for the U.S. Court of Appeals for the 4th Circuit today unanimously rejected the Trump administration’s attempts to stay a lower court order to release Kilmar Abrego Garcia from a prison camp in El Salvador.
The U.S. Supreme Court ordered the Trump administration last week to facilitate the release of Abrego Garcia, a Salvadoran man that three government officials admitted was mistakenly sent to El Salvador’s most notorious prison, along with several hundred other alleged gang members. However, the Trump administration has done nothing to comply with that order; it insists it has no power to return Abrego Garcia from another sovereign state—nor does a court have the authority to force it to do so.
When the federal district judge overseeing Abrego Garcia’s case attempted to enforce the Supreme Court’s order, the Trump administration requested an emergency stay from the Fourth Circuit Court.
Judge J. Harvie Wilkinson, a Ronald Reagan appointee to the Fourth Circuit, wrote that allowing the administration’s passive interpretation of “facilitate” would “reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
“It is difficult in some cases to get to the very heart of the matter,” Wilkinson wrote. “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 should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Wilkinson warned.
Trump administration officials have made no secret of its contempt for the concept of due process.
“To say the administration must observe ‘due process’ is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors,” Vice President J.D. Vance wrote in a post on X this week. “When the media and the far left obsess over an MS-13 gang member and demand that he be returned to the United States for a *third* deportation hearing, what they’re really saying is they want the vast majority of illegal aliens to stay here permanently.”
White House officials have also repeatedly said—and President Donald Trump was caught on a hot mic with El Salvador’s president confirming—that they’re exploring ways to send U.S. citizens to El Salvador as well.
The grave due process implications of Abrego Garcia’s case, the Trump administration’s plans to expand foreign detention to American citizens, and its increasingly obstinate and mendacious rhetoric leave little doubt that we’re heading toward a legitimate constitutional crisis, which Wilkinson acknowledged in the court’s order.
Wilkinson ended his order with what amounts to a plea to the Trump administration to come to its senses: “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,” he wrote. “This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”
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