Harvie Wilkinson on Due Process
After Judge Paula Xinis granted discovery to Kilmar Abrego Garcia’s attorneys, Trump ran to the Fourth Circuit.
Waiting less than a day, the conservative on the panel for the case, Harvie Wilkinson, wrote a scathing opinion rejecting Trump’s plea for help.
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.
Read the rest.
So many instances of laser language:
“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.”
Given that Trump ran on a platform of “I will be your retribution,” I’d say the answer to that question is “None – it’s almost guaranteed with *this* Executive.”
Judge Wilkinson in this instance appears to be poking Congress from its sheepish stupor.
I also view this as a warning to Roberts about what his legacy risks being, with perhaps a blueprint of what correction could look like
@CaptainCondorcet
“I also view this as a warning to Roberts about what his legacy risks being, with perhaps a blueprint of what correction could look like.”
Ed Walker’s excellent post today (“Wilkinson Tries to Salvage Trump V. US”) underscores the perceptiveness of your comment:
“Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.”
More than a flicker of hope. It’s an outright bonfire of righteousness!
i downloaded it, printed it out, and have been emailing to my family and friends. gonna read it every day to keep hope in sight.
Let’s be clear- Judge Wilkinson isn’t just a conservative, he’s a brash, trumpian conservative.
[Thanks for updating your username to meet the 8-letter minimum. Please be sure to use the same username and email address each time you comment so that community members get to know you. /~Rayne]
Chris Geidner:
https://bsky.app/profile/chrisgeidner.bsky.social/post/3lmzvux4dws2v
April 17, 2025 at 4:08 PM
Kyle Barry makes another key point:
https://bsky.app/profile/kylecbarry.bsky.social/post/3lmzxizwvwc2n
April 17, 2025 at 4:37 PM
And Steve Vladeck weighs in as well:
https://bsky.app/profile/stevevladeck.bsky.social/post/3lmzt4wq6ck2h
April 17, 2025 at 3:18 PM
Thank you, always, for the superb steady scholarship!
Thinking ahead here . . .
What is Trump going to do tomorrow afternoon, to keep this from being the story all weekend? Invade Canada at Kingston and take
Crimeathe Ontario peninsula, to teach those pesky Canadians not to boo the US national anthem at hockey games?Removing the acting director of the IRS — named by Trump — might be that, or may simply be Elmo v Bessett.
Shapley was uniquely unqualified to hold that job anyway (like ALL of Trump’s appointments this time around). Does seem to be because of a feud with still-co-president Musk. On to the next no-goodnik.
I asked my tax guy if he’s noticed a decrease in service in dealing with the IRS this year and he said no, but only because he hasn’t had the need to call them up on the phone to ask questions or straighten anything out with them…
Yay. I hope that more lower-court judges write strongly worded decisions about bedrock principles, which makes it harder for the SCOTUS conservatives to redefine these cases on technicalities rather than bedrock principles
The Georgia guy has been released from jail. And Van Hollen has met with Abrego Garcia.
I was stunned to read about the FL case you mentioned. So being US born doesn’t protect you from ice detention, especially if you happen to be brown skinned https://www.nbcnews.com/news/latino/us-born-citizen-detained-ice-immigration-florida-rcna201800
This is why the so-called “sanctuary cities” garbage is just that: Immigration is a Federal function, and the Feds want local governments doing their jobs, when they legally are not allowed. These guys don’t know anything about state’s rights, unless it favors the rich and powerful.
No American citizen is immune from this bullshit abuse of power.
Three different citizens born inside the US received “Leave the country now” emails from DHS:
https://youtu.be/WJZD3XbYOSM
https://youtu.be/8a6JdTVZUMY
https://youtu.be/o_FiGZoA2aY
I’m sure there are more out there, I found these inside a couple minute-long search.
How did DHS get their email addresses, for starters? How were they identified and sent these messages without advance validation?
How long before Robert Mueller and Jack Smith rise to the top of Trump’s one-way travel list?
“No American is immune from this bullshit abuse of power.”
With DOGE having access to, and able to collate and compare, more and more government databases, they can pin point nearly everyone along whatever demographic axes they wish.
“How did DHS get their email addresses, for starters? How were they identified and sent these messages without advance validation?”
Seems DOGE [sic} cross referenced two (or more) data caches:
via Dara Lind:
https://immigrationimpact.com/2025/04/17/trump-email-migrants-leave-seven-days/
I’ll add another one in a suburb of San Diego: https://www.10news.com/news/local-news/u-s-citizen-born-in-national-city-received-deportation-letter-in-dhs-email
Not a lawyer, but an “accredited representative”. And an image of a printed copy of the email.
What’s a little squirrely is that the to: line of the email has the advocate’s name, not the email address. My conjecture is that someone did a quick & dirty query of a database and sent emails without knowing enough about the database to know that the email might be to an attorney or other person helping that migrant. In this case the email address would have been “[email protected]” They did not include a name of the migrant of interest, nor a case number, nor anything else as even rudimentary mail-merge, which is what IRS or any other federal agency would do in normal operations.
I suppose an alternative would be that there is/was a migrant in their database named Aldo Gomez, who made up an email address that happened to be a real address for someone else. A few dozen more examples could sort this out, as I don’t see a court allowing discovery if someone sues DHS over receiving such email, nor DHS acceding to discovery even if it is ordered.
Reply to Eschscholzia
April 19, 2025 at 12:05 am
Or some Muskrat has been using the data they’ve already stolen from the federal government and matching it up with other databases not belonging to the federal government in order to develop profiles on *everyone*, and this is the first proof-of-concept usage.
A legislative branch not completely cowed by Musk-Trump would address this as part of investigation leading toward comprehensive data privacy, but I am not holding my breath.
Link for P J Evans comment,
Senator Chris Van Hollen and El Salvador’s Bukele announce Van Hollen meeting with Kilmar Abrego Garcia with photo.
https://www.theguardian.com/us-news/2025/apr/17/chris-van-hollen-kilmar-abrego-garcia-el-salvador
So glad he’s still alive.
Hopefully after this smackdown by the 4th Circuit, the Trump regime will be forced to return Mr. Abrego Garcia to the U.S. and give him reasonable due process. Democrats have to be willing to go to the mattresses for this, as rule of law must be protected. If the regime isn’t forced to answer for this, there will be no stopping them.
I wasn’t this afraid of the US government when it was run by Cheney and Bush. And I was afraid then.
I love this part:
“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.”
I’m struck by the tonal range of eloquence in the ruling, from this precious gem of “law in time will sign [the Executive’s] epitaph,” to the pocket pebble of “stash away residents of this country in foreign prisons.”
It would be swell if one or more people with great voices recorded that and posted the files.
Not a problem; just label Wilkinson a RINO and move on. The rubes will accept it.
(Rayne – every single comment I’ve submitted for months goes to auto-moderation. Is there anything I can do to make your moderator’s life easier, and lessen my frustration at the inherent delay in publication?)
[Moderator’s note: I’ve checked the auto-moderation system; there’s nothing obvious I can see triggering moderation on your comments. I’ve checked the last couple months of comments you’ve published and there’s nothing obvious in content/timing/location indicating a trigger. It’s possible you have a near-doppelganger flagged by the spam system setting off auto-moderation, but it’s not visible to me. I can only ask for your patience, we’ll clear your comments as soon as we can. /~Rayne]
ty, Rayne, for your diligence on everyone’s behalf.
[Moderator’s note: this time it’s your typo that triggered auto-moderation, an “x” in your email address. This could be part of the problem; if you make enough typos (and I’ve corrected many I didn’t tell you about), the system may need to be “retrained” to recognize you. Slow down and double check your username and address before submitting. /~Rayne]
Well, that’s embarrassing. As the joke goes, I type like I live – fast, and with a lot of mistakes.
I want to share two other video clips:
Pod Save America interviewed Senator Van Hollen while he was in El Salvador. This interview was recorded after Van Hollen was blocked from visiting CECOT—before the El Salvador government backtracked and actually let him meet with Mr. Abrego Garcia.
And also Ezra Klein: The Emergency Is Here, a moving video that tells the story of Abrego Garcia’s wrongful deportation and stakes of the Trump regime’s refusal to bring him back, in a clear and accessible way.
I’m always a fan of truly righteous indignation when it is warranted. But I am also reminded that Trump simply doesn’t care about such things; he’ll just laugh in the face of it and keep plowing ahead. Howling with derision does not seem an effective solution to stopping him, though it does my heart good to hear it.
Yes. What instances are there, in Trump’s life, where he was barred from doing something he wanted, and changed course as a result (gave in)? Any? Any that did not involve some kind of payment/payback to him?
Judge Wilkinson’s use of Eisenhower’s remarks about enforcing the Supreme Court’s decision in Brown vs Board of Education was especially powerful. He is laying out the stakes, not only with respect to individual liberty but also with respect to the rule of law.
Coupling that with David Brooks’ column in The NY Times calling for a civil uprising against Trump, it becomes apparent that Trump and his billionaire pals have gone too far.
Is it possible that Brooks has been influenced by many months (at least) of reading and sometimes commenting on this site?
Or is that another David Brooks?
I occasionally get misdirected plaudits on Bluesky too. My only contribution to the NYT was a LTE about the Seattle Symphony years back. It caused a stir backstage apparently.
Sounds juicy… If you’re bring something you have to share.
Way O/T, but Bruce did ask:
There was internal strife at the symphony, with pro and anti Gerard Schwarz (long-term conductor) factions. One player had sued for the stress caused. A friend said he never left his best cello unattended because of the danger of vandalism. The NYT wrote an article going into the effects of and the stress on the players and staff.
So I asked – hey, what about us in the seats, who help pay your salaries? Aren’t you going to talk about the effect on us? Because what I heard was tentative, routine, passionless. One violinist wasn’t even phoning it in. You could hear the dissent in the music.
Good news; Gerry quit not long after (along with a principal horn and principal clarinet who were part of the audible problem) and Ludovic Morlot brought new energy, a crisper sound, an expanded repertoire and (as another friend also attested) made them work harder, which they very much appreciated.
My guess is he’s motivated mostly by his NPR gig being jeopardized by Trump’s attacks on public media — and his Atlantic editor having published the 21st century analog of the Watergate Tapes, making his Atlantic mea culpa shortly thereafter seem a bit less that, and more volo meum officium.
Amy Berman Jackson is keeping CFPB alive:
https://www.sfgate.com/business/article/federal-judge-pausing-trump-administration-s-20283008.php
The over-populated prison cells appear to be designed with the same multi-tiered “sleeping-slat” design used by the Nazis at their concentration camps.
Good observation.
The DOJ’s chicanery and pettifogging extend to Florida where a US citizen was held on an ICE detainer after a Florida judge found no probable cause for his being charged with entering the state as an “unauthorized alien. He was arrested despite a Federal judge’s temporary restraining order prohibiting enforcement of that state law.
From the Florida Phoenix https://floridaphoenix.com/2025/04/18/federal-judge-extends-block-on-florida-immigration-law-that-led-to-arrest-of-a-u-s-citizen/
Florida prosecutors at the federal hearing argued that the tro extended only to prosecution of the law but law enforcement agencies were free to make arrests. The Judge was not impressed: “The Court enters a [temporary restraining order] prohibiting Defendants and their officers, agents, employees, attorneys, and any person who are in active concert or participation with them from enforcing SB 4-C,” Williams’ order states.
If the Trump administration insults and defies enough of the federal judiciary, can we hope that they will be treated as legal pests, habitually in bad faith, and denied their abuse of the court system?
As good as this opinion is, it suffers from the same flaw that I see (and can’t explain to anyone else) in every other decision with respect to Trump. No judge seems to be willing to take this administration at its word. The Trumpists are on a mission to destroy the constitutional order. You don’t have to go any further than the first sentence in the request for a stay to see what I mean:
That’s an absurd lie. Article II does no such thing. And the entire brief is based on that lie. Wilkinson doesn’t even mention it. Letting that lie go unrebutted is the same mistake that almost everyone is making, sanewashing Trump and his cronies. Think about this for a minute. That sentence is the official position of this administration, made not in a social media post, rather in an official court pleading.
And has any Senator objected to the administration expunging their power to approve treaties? Anyone in Congress commenting on the fact that the power to declare war now belongs to the executive branch, at least in the eyes of the current administration? Of course not, not a single Republican has batted an eye as the administration has arrogated to itself control over essentially all domestic policy through phony executive orders.
Time is not on our side. The longer that we allow our institutions to fail us, the harder it will be to recover from this.
Whew. That’s a post right there. If the claim isn’t rebutted immediately, it becomes a permission slip to unilaterally seize power not solely belonging to the executive.