An Opinion for the Ages

Judge J. Harvie Wilkinson III of the Fourth Circuit just weighed in on Trump. Welcome to the Resistance, your Honor.

Photo courtesy of SCOTUS blog

There are moments when stories and messages break through the noise, even in a time when chaos agents in the Trump administration have come at us with everything, hoping to flood the zone and overwhelm the public.

Sometimes things just cut through.

The plight of Kilmar Abrego García is one such moment. It has captured the attention of the public in large part because the government admitted it made a mistake but now stubbornly refuses to fix it. Moreover, the Supreme Court ruled against the White House in a 9-0 decision, even if it was mealy mouthed as usual.

Enter Judge J. Harvie Wilkinson III (yes, that’s his full, quite Republican name). Judge Wilkinson sits on the Fourth Circuit and is a Reagan appointee. He’s a consistently conservative voice. Like conservative icon Ret. Judge J. Michael Luttig (also of the Fourth Circuit, and also with three names but no Roman numerals), Judge Wilkinson was once on everyone’s short list to replace Justice Antonin Scalia.

He’s not exactly a bleeding heart liberal. And yet, he just shredded Trump.

His opinion yesterday unsurprisingly declined to second guess Judge Paula Xinis’s implementation of SCOTUS’s recent ruling in the Abrego García case. That unanimous opinion had upheld a ruling by Xinis, whom Wilkinson praised as a “fine district judge,” that had directed the government to facilitate the return of Abrego García to the U.S. from a notorious prison in El Salvador.

But it was Wilkinson’s critique of the executive that made lawyers and jurists everywhere stand and cheer.

We’re going to do something a little different today. Judge Wilkinson’s opinion, minus citations, is not very long. But it is powerful, it is effective, and it contains a soaring defense of the judiciary and its role as a check upon the executive. So I’m going to dive into the opinion and quote all of it, with a side discussion on each major point.

It’s clear that Wilkinson wrote this for not just the Supreme Court’s consumption but for the whole nation to hear. So I will give it its full due here.

The foundation of our Constitution

Judge Wilkinson spends little time disposing of the absurd request by the government to put a stop to what Judge Xinis has ordered, that is, an accounting by the government of what it has done and what it is doing to bring Abrego García home, including who the actual decision-makers are. Because Judge Xinis hasn’t actually ordered anything but a report, it’s far too soon anyway for appellate review:

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.

Then he dives right in, addressing the fascist elephant in the room.

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.

Wow, I thought as I first read this. He just went there. So we’re going to talk about due process, we’re going to talk about the government’s bogus claim that it’s powerless to act, and we’re apparently going to rip the White House a new one.

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.

Indeed. The White House keeps pressing unfounded claims that Abrego García is MS-13, that he’s a criminal, that he deserved to be deported. They say that to the cameras, but why not then just prove it in a court?

It’s because Pam Bondi and the Justice Department know the truth: The whole thing is built upon a single hearsay statement by an ICE agent. As Judge Xinis noted in her prior ruling, “The ‘evidence’ against Abrego García consisted of nothing more than his Chicago Bulls hat and hoodie and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”

Further, as Greg Sargent of The New Republic reported, the attesting officer was highly problematic:

The cop who initially attested to Abrego Garcia's alleged MS-13 membership was subsequently suspended and indicted for serious professional misconduct: Sharing case info with a sex worker.

Judge Wilkinson cuts right through and notes that the question of Abrego García’s alleged MS-13 membership is wholly irrelevant to the bigger question at hand: Even if he were MS-13, isn’t he entitled to due process? The answer from Wilkinson is a resounding yes.

I should note here, MAGA’s constant refrain that “bad guys don’t deserve due process” misses the point of due process entirely. After all, it presupposes who is good and bad—the very thing people get to challenge when given real due process. In Abrego García’s case, the allegation that he’s a bad guy is hardly proven, and in any case, it simply doesn’t matter for purposes of due process.

So what is the government going to do about it?

Wilkinson next takes the government to task over its inaction:

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

He turns to the recent, controlling and unanimous decision of the Supreme Court, one that he notes sought to balance the government’s legitimate interests against the requirements of the Constitution.

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.”

He then walks through what deference usually looks like.

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.

But he draws the line at the idea of the government throwing up its hands.

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.”

And here’s the point where the judge nails the government for its semantic games:

“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.

Judge Wilkinson explains how adopting the government’s view of “facilitation” would open the door to abuses and defiance of the Supreme Court’s clear directive. And it would make a mockery of the rule of law:

“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. “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 broader view

Judge Wilkinson takes the next moment to capture the present tension between the executive and judicial branches, acknowledging with eloquence and grace that the executive may be impatient with the limitations that the judiciary has set, but those limitations are what safeguard our system. His opinion is a succinct encapsulation of the checks and balances built into our way of governance. It is one worth reflecting on going forward, especially as we question the “means” by which the Trump White House hopes to achieve its “ends”:

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.

Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. 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. It can rescue the government from its lassitude and recalibrate imbalances too long left unexamined.

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. 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.

Calling out the dictator

Wilkinson devotes the next part of his ruling to a direct critique of President Trump. He doesn’t use his name, but he takes aim at things Trump has said in meetings and to the media lately. First, he blasts the idea of deporting U.S. citizens to foreign prisons where they will be out of the reach of our laws:

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?

Wilkinson no doubt has in mind Trump’s recent remarks to CNN about deporting “homegrown criminals,” which he claimed he’d “love to do.”

Judge Wilkinson also raised the alarm over Trump’s targeting of his political enemies, who include former Director of Cybersecurity Chris Krebs. If you recall, Krebs was the official who dared to speak the truth about how secure and reliable the results of the 2020 election had been.

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.

Judge Wilkinson then blasted the White House for creating a legal no-man’s land with the cooperation of Abrego García’s jailers:

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. 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.

Mutual respect

Wilkinson, along with every other judge, knows how frequently and viciously Trump has attacked and sought to undermine the power and credibility of the judiciary. He used his opinion to address what has been happening.

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.

He then draws upon history and the figure of President Dwight D. Eisenhower, whom he describes as a “great man” to draw a stark contrast with the current White House occupant.

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 the decisions 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.

A stark warning, and a case for hope

Judge Wilkinson warns that not only would all parties be harmed from such a conflict, but in the end the Executive would be ground down by history and law:

This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dint 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.

But he didn’t end it there. He called upon the Executive to seize this chance to adhere to the rule of law:

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.

A well-timed clarion call

There are indeed signs the White House is preparing to back away from the constitutional abyss. Senator Chris Van Hollen (D-MD) was permitted to meet with Abrego García privately after first being denied an audience. Administration officials, from Tom Homan to Trump himself, when asked if they will obey the Supreme Court ruling, are now saying that it’s up to the lawyers to decide.

As the Associated Press reported,

When asked by reporters Thursday afternoon if he believed Abrego Garcia was entitled to due process, President Donald Trump ducked the question.

“I have to refer, again, to the lawyers,” he said in the Oval Office. “I have to do what they ask me to do.”

The answer of course should have been a quick and unvarnished “yes.” Still, this is a far cry from the taunting, defiant stand we saw from Trump just days ago. The President has now beaten his chest over this issue so much he likely now worries about looking weak, especially having already backed down recently on tariffs and having had his bluff called by Harvard University.

Judge Wilkinson’s opinion lands at an opportune time, with Republicans in Congress beginning to waver in their support and denounce the pervasive atmosphere of fear. In her most candid comments to date, Sen. Lisa Murkowski (R-AK) remarked just yesterday,

“We’re in a time and place where — I don’t know, I certainly have not — I have not been here before. And I’ll tell you, I’m oftentimes very anxious myself about using my voice because retaliation is real. And that’s not right. But that’s what you’ve asked me to do and so I’m going to use my voice to the best of my ability.”

Meanwhile, opponents are readying another nationwide set of protests this Saturday, April 19 where turnout is expected again in the millions across all 50 states.

It is, of course, far too soon to write the Trump White House’s “epitaph,” as Judge Wilkinson predicted the law would one day do. Trump’s allies at the Heritage Foundation, along with white supremacist zealots like Stephen Miller, no doubt are readying more vicious and horrific attacks, including mass deportation efforts about to get underway. Their full assault upon our federal government, with a big assist from Musk and DOGE, particularly upon earned benefits and programs such as Social Security, Medicare and Medicaid, has only just begun.

But history also will likely mark this as the moment when the judiciary took a notably strong stand against Trump. Other institutions and leaders have rallied, too, for the defense of our Republic, from our elite universities, to a historic Senate filibuster, to town halls and rallies held across the reddest of states. These are delivering a clear message that we will suffer no kings or their brutal regimes.

So let us continue to ensure Judge Wilkinson proves prescient in his elegant and powerful words: “The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions.”