Every once in a while, a judicial decision is so beautifully written and so well crafted that it should be read in full, not summarized.
Such a decision was rendered yesterday by Judge J. Harvie Wilkinson of the Fourth District Court of Appeals in the case of Kilmer Abrega Garcia. Judge Wilkinson was appointed to the Fourth Circuit Court of Appeals by President Reagan in 1984. He is an old-school Republican who believes in the U.S. Constitution and the rule of law. Remember them? People like Liz Cheney and Adam Kinzinger, who are reviled by MAGA. To MAGA, whatever Trump wants overrides both the Constitution and the rule of law.
Abrego Garcia is one of the 238 men picked up by ICE and whisked away to a terrorism prison in El Salvador. None of those men had a hearing or due process. A district court judge (appointed by President George W. Bush) ordered the government to turn the flights around and bring the men in three planes back to U.S. soil. The administration ignored his ruling. Another federal district judge ordered the Justice Department to bring him back. However, the Trump Justice Department insists that the U.S. has no jurisdiction in El Salvador.
His case and plight have sparked nationwide demonstrations against the government for failing to provide him due process and refusing to bring him back despite the orders of two federal district judges and the U.S. Supreme Court, which ruled 9-0 that the government must “facilitate” his return while showing due deference to the President’s control of foreign affairs.
Here is the full decision. It is not long (seven pages) and it is great reading.
If you want to read its crucial reasoning (without the legal precedents referenced), here is the core of the decision:
“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. 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 should be shocking not only to judges but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps. Perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that that position will prevail in proceedings to terminate the withholding of removal order. In other words, if it thinks it’s got such good factual proof of that, what is it so worried about? It can present it, and it should prevail in getting him removed from this country.
Moreover, the government has conceded that Abrego Garcia was wrongfully or mistakenly deported. Why then should it not make what was wrong right?
Let me just repeat that. 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.
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.’
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 administrative agency and contained in mere policy directive.
Thus, the government’s argument that all it must do is remove any domestic barriers to his return—that is, the government said, ‘You know what? If he can make his way to our shores, then we have to take him in’—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 prison that the withholding order forbids, and further to do so in disregard of a court order that the government, not so subtly, spurns. Facilitation does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would facilitate foreign detention more than it would domestic return. 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 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? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies? That threat—even if not the actuality—would always be present.
And the executive’s obligation to ‘take care that the laws be faithfully executed’—that’s a quote from the Constitution, Article II—would lose its meaning.
Today, both the United States and the El Salvadoran government disclaim any authority and/or responsibility to return Abrego Garcia. We are told that neither government has the power to act. That result will be to leave matters generally—and Abrego Garcia specifically—in an interminable limbo without recourse to law of any sort.
The basic differences between the branches mandate a serious effort and 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.”
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.”
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 thedecisions of the Federal Courts.” Indeed, in our late Executive’s own words,“ [u]nless the President did so, anarchy would result.”
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 tragicgap 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.
The most ominous words in this decision are the last five. “…While there is still time.”
This respected conservative jurist recognizes that the goal of the Trump administration is to diminish and undermine the federal courts and to make himself an emperor.

Outstanding.
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Thank you!
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Eisenhower warned that anarchy would result from the executive refusing to carry out the law. Obviously, project 2025 wants this to occur. Trump I’d just a figurehead. We are being governed by a shadow government composed of billionaires
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Not forgetting the millions of Trump-acholics who having found their ideal action toy, put him in place, idolised him and the oaf never realised he was doing just what they told him to do.
Now he is a ‘safe investment’ for those wealthy folk with no sense of nationhood or respect for the population as a whole.
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“Now he is a ‘safe investment’”
He’s not the investment. The investment is in J.D. Vance. The CONVICTED FELON is just a place holder. Wait and see as I contend that they will 25th amendment the CONVICTED FELON before next years election. Then they can place the COUCHF*#KER on their throne to help bring about the christian nationalist theofascist government those with the money on the regressive/reactionary reich wing desire. They’re ready for their imaginary Jesús to come “come back” to earth to gather his children (he didn’t know how to keep his. . . in his pants) and swoop them up into their supposedly glorious afterlife in that magical kingdom in the sky.
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They will try. Like most with narrow-minded vision based on plans they have dreamed up without thinking just wishing they will try and force those plans through.
They have a problem though. The USA is not a nation used to authoritarian governments with an institutionalised generational grip on the system. Not everyone is falling line. The USA has never worked like that. Not in the long game. You are still a turbulent young nation.
Now we can all hope that will go the constitutional way and eventually a lot of folk who are not thinking straight will get their senses back.
Or if this keeps on a relatively fall number of desperate folk will give up on the system and kick back in a violent way, which in turn which get the Trump supporter base doing likewise (or the other way around)
The next step will be a Northern Ireland type low-key urban war, and despite what The Right might boast or think, they are not ready for the implications of that.
They are just not reading their histories. If they did some of them would eb having nightmares right now.
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All should realize that my political predictions from the past have not been very accurate, but hey I keep on trying. . . .
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These are turbulent times. Just like weather in the changing seasons we can make rough estimates.
We can prepare for the worst and hope for the best.
Despite all apparent evidence to the contrary and my own tendency to reckon on the harsh Realpolitik outcomes I still keep on hoping for better outcomes (nothing like arguing with yourself to keep you on your toes – just don’t do it out loud)
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Roy,
You are absolutely right.
Trump knows nothing about law or public policy.
There is a deep state, headed by Russell Vought, who wrote/organized Project 2025, is now in charge of the Office of Management and Budget–and Stephen Miller, the hater-in-chief.
Vought is a self-proclaimed Christian Nationalist. Miller is a self-hating Jew.
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He may be a self-hating Jew, but he has even less regard for the citizens of Gaza. Maybe he is just weird.
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Stephen Miller is vicious. He is a hater.
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Here’s a voice from outside the left-wing bubble, i.e. the type of voice that 99+% of this blog’s readers never come across. Admit it: you want everyone who crosses the border to be able to stay forever, collect public benefits, and vote for Democratic politicians.
https://x.com/ScottJenningsKY/status/1913195598259302416
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Why would anyone trust a thing on X? It’s a Putin puppet oligarch’s personal cesspool of Kremlin lies and disinformation. Maybe you can post a link from TASS or PRAVDA next time to illustrate political thought “outside the left-wing bubble”. Ask yourself: Do you have any political values not based on fear, hate and lies such as a commitment to due process?
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Scott Jennings is a shill for the worst president in American history.
It’s easy to see and hear him any day on CNN.
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No profile? Bot? Troll?
Sukinzeeggs!
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HOLD YOUR BREATH!!!! ⇾ This Sunday, April 20, Trump’s “Justice” Department is set to announce its findings on whether or not to invoke THE INSURRECTION ACT because of what Trump calls “a national emergency” at our southern border.
IF THIS ACT IS INVOKED, Trump will have the authority to station armed troops in every city and town in the nation to police the activity of every citizen and detain and silence anyone who criticizes Trump or his policies.
KEY CONSTITUTIONAL RIGHTS WILL BE SUSPENDED and the United States will have taken a giant step toward becoming an absolute dictatorship — just as Trump told us during his campaign.
NO ONE BELIEVED Trump during the campaign when he said he intended to be dictator and that if he was elected, no one would ever need to vote again.
ALL THE POLITICAL PUNDITS SAID that even if TRUMP tried to do those things, our constitutional system of “CHECKS AND BALANCES” would prevent him.
ANYONE who has read the 1930’s history of Germany knows that this is the same thing that most Germans said about Hitler — that what Hitler was saying before becoming Chancellor of Germany was just campaign talk and that Germany’s constitutional “checks and balances” would prevent him from doing any of the things he was talking about.
AND LOOK WHAT HAPPENED.
WE HAVE ALREADY SEEN that America’s constitutional “checks and balances” don’t really work because Trump has completely IGNORED a UNANIMOUS RULING BY THE SUPREME COURT. Americans have learned now that the Supreme Court has no actual constitutional power to itself enforce any of its rulings, no power to “check” a rogue President.
THE ONLY OTHER “CHECK” on a rogue President is Congress, and as Senator Murkowski said of herself and her fellow members of Congress: “We are all afraid” because Trump now controls all the tools of government — the FBI, the Justice Department, the IRS — for punishing and even imprisoning any member of Congress who opposes him.
FEAR.
FEAR is how Hitler took over Germany, using his SS and other government tools of suppression to silence the members of Germany’s parliament, to rip people off the streets and out of their homes and “disappear” them.
FEAR is the basic weapon by which dictators rule.
IF PEOPLE TRY to oppose Trump by demonstrations, Trump will use the demonstrations as reason to invoke THE INSURRECTION ACT by which the last of Americans’ beloved personal rights will be ended and by which nationwide roundups of Trump’s opponents will increase.
HAS ANYONE CONSIDERED that all those facilities supposedly being built to house illegal immigrants could actually be for housing American citizens who demonstrate or speak out against Trump? Maybe YOU?
SO, MARK THIS EASTER SUNDAY, APRIL 20, ON YOUR CALENDAR — it could be THE DAY DEMOCRACY DIED.
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I’m thinking, maybe if federal law enforcement will not enforce federal court rulings against the fascist regime led by a convicted rapist, fraud and felon, because the sadistic sociopath’s loyalist puppets in charge will order those federal law enforcement agencies to ignore those rulings, maybe the states will step in to support those federal courts with state law enforcement officers.
AI Overview
“In the United States, there are significantly more state and local law enforcement officers than federal law enforcement officers. While there are approximately 137,000 officers working for federal agencies, the total number of sworn officers, including state and local, exceeds 900,000. This means there are roughly 763,000 more state and local officers compared to federal officers.”
Some of us, which includes me, can always hope, that someone who has real power will step up and use it to stop the dictator loving want-to-be dictator. It may be up to Democratic governors to grow a spine.
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Dominoes Are Falling.
Donald Trump’s policy has been ‘flooding the zone,’ throwing out so much, so fast, that no one could keep up. Now people are throwing it right back at him. And fast.
JAMES FALLOWS/4/18/25
https://fallows.substack.com/p/dominoes-are-falling
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Abrego Garcia is a hostage until he is charged, due process, and hearing.
Abrego Garcia is also the poster boy for the disdain this administration has for immigrants. When talking about Abrego Garcia, they only talk about another immigrant who did commit a violent crime. One man’s guilt does not define an entire population.
El Salvador is being paid to provide prisons for immigration law violators. Immigrants apprehended without cause or due process – then imprisoned – smacks somewhere between internment camps and concentration camps. (I’m surprised trump hasn’t used WWII internment camps as “precedent” – “all persons deemed a threat.”
Abrego Garcia imprisonment by U.S. admission was a mistake. He’s a hostage. The U.S. is supposed to negotiate bringing hostages home, not pay foreign countries to keep them.
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I think his honor meant to say, “by dint of…”.
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