President Donald Trump’s attempt to “stash away” U.S residents in a brutal prison in El Salvador “without due process” should be “shocking” to Americans’ “intuitive sense of liberty,” according to a panel of federal appeals court judges.
On Thursday, a three-judge panel in Washington, D.C., denied the Trump administration’s emergency request to block a court order to enforce a Supreme Court ruling for the government to “facilitate” the release of Kilmar Abrego Garcia, a wrongfully deported Salvadoran immigrant who was living in Maryland.
A blistering order written by Ronald Reagan-appointed appellate judge J. Harvie Wilkinson said “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.”
The government claims that “it has rid itself of custody” of Abrego Garcia and “there is nothing that can be done,” according to the order.
“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 wrote.
Earlier on Thursday, government attorneys called on appellate judge to pause an order requiring officials to explain what, if, anything the administration is doing to return Abrego Garcia, who has spent more than a month inside El Salvador’s notorious Terrorism Confinement Center despite a judge’s 2019 order that blocks his deportation.
Last week, the Supreme Court ordered the administration to “facilitate” Abrego Garcia’s “release from custody in El Salvador,” noting that officials agreed sending him there was “illegal.”
The White House and government attorneys have repeatedly admitted that his removal was due to an “administrative error.” But the administration has refused to seek his return and instead are fighting in court to continue his imprisonment as an alleged member of a “foreign terrorist organization,” which officials argue supersedes any court order against his removal.
“Regardless, he is still entitled to due process,” Wilkinson added.
“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,” he wrote. “Moreover, the government has conceded that Abrego Garcia was wrongly or ‘mistakenly’ deported. Why then should it not make what was wrong, right?”
While the Supreme Court’s order notes a deference to the president’s authority to conduct foreign policy, that ruling does not “allow the government to do essentially nothing,” Wilkinson wrote.
“‘Facilitate’ is an active verb,” he added. “It requires that steps be taken as the Supreme Court has made perfectly clear.”
The judges also noted the growing tension between the courts and the president, who has repeatedly defied court orders and threatened to impeach judges who have ruled against him, with legal scholars fearing the president steering the country into a constitutional crisis.
But the president’s “enormous powers” can be restrained, Wilkinson noted.
“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?” he asked. “And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?”
Wilkinson noted that the executive and judicial branches are close to “grinding irrevocably against one another,” and it is “all too possible to see in this case an incipient crisis.”
“But it may present an opportunity as well,” he wrote. “We yet cling to the hope that it is not naive 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.”
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