Chris Geidner
@chrisgeidner.bsky.social
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It is an astounding opinion written by an 80-year-old, conservative Reagan appointee who — along with his former colleague, Judge J. Michael Luttig (a note that makes its own point about this moment) — once led what many considered to be the most conservative appeals court in the nation.
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, 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. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to
a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or "mistakenly" deported. Why then should it not make what was wrong,
right?
ALT
"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
3
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.
ALT
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? 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. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.
ALT
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.
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.
ALT
April 17, 2025 at 4:15 PM
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