Is it Time to Ignore the Judiciary?

It seems clear to me that the broad scope and speed of the administration’s actions have knocked the sense out of the media, the Democrats, and, alas, the judiciary. They cannot seem to process the swift and expansive range of change without making themselves look ridiculous. 

The Press 

I could describe many examples, but the easiest and most complete is that of the alleged gang-banging, wife-beating, human trafficking Salvadoran citizen who illegally crossed our borders and resided here. You know who I mean — the thug the press describes as a “Maryland Man.”

So the nation is transfixed — or at least Democrats and the news media — by the case of Kilmar Abrego Garcia, the “Maryland Man” who has suddenly topped “Minnesota Man” as the object of media obfuscation. He is the Salvadoran national the Trump Administration deported to El Salvador along with a bunch of Venezuelan gang members who curiously the left isn’t even trying to defend, even as the Biden Administration didn’t lift a finger against any of this gang. It’s almost as though the left and the media are using Garcia to distract from the fact that Trump did something that a large majority of American approve. Admitting gang members at the border? Who, us????

There are a lot of tangled arguments about Garcia’s legal status, and the Trump Administration’s handling of his deportation. Yet I recall a 1953 Supreme Court case, Shaughnessy v. US ex rel. Mezui (345 U.S. 206), which Walter Berns described in his fabulous first book, Freedom, Virtue, and the First Amendment: 

‘An alien resident of the United States for twenty-five years journeyed to Hungary to see his dying mother, leaving his wife in their home in Buffalo. After considerable difficulty he obtained a visa from the American Consul in Hungary and returned to the United States. He was refused permission to land for “security reasons.” The Attorney General refused to inform him of the evidence against him. England, France, and twelve South American countries refused to admit him; he could neither re-enter the United States nor go to any other country. He sought parole from Ellis Island by praying for a writ of habeas corpus. This was granted, but the government appealed to the Supreme Court, in a five-four decision, upheld the government. The man without a country returned to Ellis Island, perhaps for the rest of his like, without being told why he was a security risk. [Emphasis in original.]’

It’s not an identical case, but similar enough for judicial work. It seems to me the “risk” involved in the present case of “Maryland Man” MS-13 member Kilmar Abrego Garcia is at least as good as a Hungarian who had been living with a spouse for 25 years in Buffalo, though I suppose 25 Buffalo winters may be the equivalent of a Salvadoran prison. And let’s not forget that by the time of this 1953 decision, the Supreme Court was a completely New Deal Court, with all nine justices appointed by a Democratic president.

The Democrats

While the press ignored Garcia’s wife’s two restraining orders against him for beating her up, they concocted a sob story of a longtime U.S. (illegal) resident who is being separated from a loving wife and three (only two of whom are, it turns out, his) families of criminals and alleged criminals are rewarded by left-wingers and idiots.

Senator Chris Van Hollen, who, as a Democrat, naturally picks the wrong side of the issue, raced down, he said, to obtain Garcia’s release from El Salvador’s prison, and was photographed seated at a restaurant with Garcia and some margaritas. (Van Hollen claims the drinks were put there to embarrass him and he did not drink any, but he needn’t, because he and his party seem drunk to ordinary Americans. I asked X’s Grok to scan the research, and it reported back that about 23% of adult Americans have some form of mental illness. By last count, about 21% of Americans identify as Democrats. Coincidence?)

At the meeting, Garcia appeared to have been fairly treated, which is not remarkable. If you recall, the only reason he had not been deported years earlier was because he claimed he feared he’d be killed by rival gang members, and those members are now imprisoned. Indeed, he told ICE at the time of his deportation that he was not afraid to be deported there. 

The Courts

Judge Paula Xinis in Maryland ordered the administration to facilitate Garcia’s release from prison in El Salvador. The government admitted it erred in overlooking the hold on his deportation, a hold solely based on his demonstrated fear of inter-gang violence, which no longer exists. The Fourth Circuit Court of Appeals denied the appeal. On April 10, the Supreme Court ordered the district court to clarify its order.

The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly 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. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

The judge does not appear to have done so. The Department of Justice says this is now a matter of international affairs, as to which the court lacks jurisdiction.

Bill Ackman, who tweeted:

Yet that’s the direction District of Columbia Court Judge James Boasberg seems to be headed, and unless the Supreme Court acts to stop this nonsensical reading of the Constitution, making of it a suicide pact destroying nationhood, we will be heading into a constitutional crisis forcing the president to do his duty to protect our borders or comply voluntarily with an overreaching judiciary. (Voluntarily, because the courts lack any enforcement mechanism.) 

The issue is clearest in a case involving Venezuela’s Tren de Arugua gang members. Earlier, Judge Boasberg ordered the Administration to stop deporting illegal aliens who were members of Tren de Aragua. The Supreme Court said that Boasberg lacked jurisdiction to hear the case and that individuals affected must file habeas corpus petitions in the place where they were located. The plaintiffs, or at least some of them, were in Texas, so they filed there, and their petitions were denied. They simultaneously filed appeals in the Fifth Circuit and back in the District of Columbia before Judge Boasberg. Odd? You bet.

Shipwrecked crew summed up the extent of the government’s obligations:

‘AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.’ ‘Notice they are subject to removal.’ ‘Within a reasonable time and in such manner as will allow them to seek habeas relief.’ In the hearing today before Judge Boasberg the Govt described the written notices being given advising the possible deportees they are subject to removal. The Govt attorney said many habeas actions have been filed. Seems like the Govt has met its obligations. Those who have filed for habeas review will not be removed until those matters are resolved. For those who have not filed — they could have as is evidenced by the fact that others have — adios.

Kurt Schlichter commented:

… doesn’t have jurisdiction, and ask for relief there.

The appellate court scotched Boasberg’s efforts, and he indicated he couldn’t give the plaintiffs the relief they requested. The plaintiffs were seeking an order requiring the government to provide 30 days’ notice for removal, among other things.

I certainly expected this fandango was over by now. Then, in the middle of Friday night, the Supreme Court issued a stay blocking the administration from using the Alien Enemies Act to carry out mass deportations of illegal aliens who are gang members. Justices Alito and Thomas dissented.

Just last week, the Supreme Court said virtually nothing the administration does under the Alien Enemies Act is subject to judicial review, so it’s puzzling what they intend to review. Or, as some have suggested, with Trump having overcome the media and administrative state’s resistance efforts, has the judiciary decided to step into the breach?

Image: Michael Ramirez

American Thinker