Harvie Wilkinson Tries To Salvage Trump v. US
Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.
In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.
When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.
Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:
“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue 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.
For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.
The reference to Federalist No. 70 is a polite call-back to Trump v. US:
The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.
Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:
Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.
Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.
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.
Perhaps most astonishing about SCOTUS’s action this morning: that Roberts et. al. chose to preempt the Fifth Circuit–notoriously the most reactionary district court in the country. SCOTUS’s earlier order mandated appealing such overreach within the district where detainees were scooped up; this not only cut Judge Boasberg out of jurisdiction, it also means that Trump administration sadists can shop around for jurisdictions (like north Texas) known to be receptive to MAGA legal contortions.
Roberts chose to insert SCOTUS here. Things must be getting pretty dire indeed.
The key is, with a duplicitous DOJ, does this have any effect or does trump ignore this too?
If ever there was a time when the SCOTUS should say we screwed and need to fix it now.
Citizens and Trump have been disastrous.
speaking of troglodytic 5th circuit:
“A federal judge [Wm Sessions] ruled late Friday that Rumeysa Ozturk, the Tufts University grad student from Turkey who was arrested by immigration authorities last month, should be returned to Vermont while the case challenging the constitutionality of her arrest moves forward in Burlington.”
vtdigger.com
Curious to see what happens next.
Especially since Tufts, where she’s a student, is in Massachusetts.
Antedeluvian comes to mind as well. I do have a question for the legal minds here. We know that the DoJ keeps saying that the habeas petition must come where the prisoner is held, but IIRC the trials must be where the crime was committed unless the venue is changed in a separate hearing. It’s a leftover from the Declaration of Independence which took issue with the British habit of spiriting its misbehaving soldiers away from the colonies to prevent convictions. It is also permanently enshrined in the Sixth Amendment for jury selection and Article III Section 2 for location (this requires public trial where the crime was committed).
In short, the Founding Fathers were well aware of the dangers of secret trials in unaccountable venues. IANAL, but this would appear to me that while the DoJ can hold their prisoner in TX, the hearings and trial must be in their place of residence (in this case MA for Tufts) because that is where the crime of being in the US was committed when the arrest was made. How much has case law dug into this basic principle of fairness?
I think ICE was holding Ozturk in Vermont when her lawyer (who had no idea where she was being held) filed a habeus petition. The MA judge transferred the case to VT (where the case should have been filed in light of Ozturk’s physical location), which was arguably permissible under the federal rules. The DOJ attempted to argue that Ozturk was already in LA when the case was transferred so it was necessary to start over in LA. Judge Sessions explained very patiently (it only took 70 pages or so) why this was incorrect. I am not an immigration attorney, but the opinion seems reasonable to me.
yes, this seems to have been the case.
Yes, execrable, ignoring the impeachment judgement clause and citing to McDonnell and Fitzgerald for the proposition that unfettered presidential power is essential, even where the cited text actually referred to executive branch officials in general (to whom the majority did not grant absolute immunity) and not to the president in particular.
Ends don’t justify the means. Means are the ends, as Trump amply illustrates.
“Ends don’t justify the means. Means are the ends . . .”
The Tautology of the Tyranny of Chaos: Means Justify the Ends.
Not at all what I wrote or meant.
No, it was not, nor meant to be.
“the universe is more concerned with means than ends: beginnings must be clean to be of profit” – Surak
A few pics from a small but lively protest I attended in the Westchester (LAX) neighborhood of L.A. this afternoon:
https://truby.com/xzq/protest1.png
https://truby.com/xzq/protest3.png
https://truby.com/xzq/protest5.png
https://truby.com/xzq/protest6.png
“Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.”
=====
Isn’t that the P25 blueprint? It’s not as if the Trump 2.0 incompetents thought of this on their own. It took higher-level evil thinking to come up with this plan.
I think Project 2025 was laefwly inspired by the speech and writings of Curtis Yarvin I linked in my last post.https://www.emptywheel.net/2025/04/07/introduction-to-series-on-curtis-yarvin/
Thank you for the link. I missed that contribution entirely.
An informed society is the best defense against tyranny.
I’m late to the party, but am here to help inform.
Where I inform currently, I am finding much, much, resistance. But maybe, just maybe, my contribution(s) help open the door to enlightenment. I can only hope.
Your link will help and be useful to my chosen task.
Can the word infirm below please be changed to inform? Thank you. I think I fat fingered my email address on my phone.
[FYI – both are fixed. /~Rayne]
A word new to me, what is ‘laefwly’?
“A word new to me, what is ‘laefwly’?”
I looked it up, and it wasn’t ‘there’. Perhaps ‘Lawfully’…emphasis on the the letters following the ‘L’.
“largely”?
Don’t be a dick. That’s one of the first rules here. Ed has vision challenges and may make more typos because of it. Take a breath and move on.
Largely. Sorry, chalk that up to bad eyes.
I’m a longtime fan and longtime reader, and I agree 100% with this take…
I appear solely to note a minor matter— his name is Abrego. Not “Albrego”.
Excellent!
Thanks.
Thank you for this, and for Marcy Wheeler’s great posts on this case. Wilkinson’s opinion hit like a thunderclap where I live in Virginia. He’s a conservative judicial icon in these parts and it was taken as almost schooling SCOTUS on how to stop being abused. I’m not sure that SC order happens without his opinion.
Thank you for a great post. I’ve had my ass kicked by Judge Wilkinson in the 4th Circuit before. He ripped me to shreds during oral argument. They have a tradition in the 4th Circuit of coming down from the bench to shake the hands of counsel after oral argument. I could have sworn that Judge Wilkinson growled at me when he shook my hand.
“When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously”. I’m not buying it or not without a long list of qualifications. Trump never “turned” on the judiciary. He’s always treated it with total contempt.
I try not to say “never imagined”. This particular ‘never imagined’ about some tough rhetoric from Trump is incredibly mild. The real ‘never imagined’ is the lust for blood. The dark romance with death and humiliation that lives so prominently in so many. It’s in the air everywhere. It’s time to stop never imagining. It’s time to grow up, so to speak. Steel yourself. I imagine Scalia imagined exactly what 5 or 10 million AR15’s in the hands of Conservative citizens would do.
Protesting is nice, but the con-servatives have no problem with guns used by shooters of children and teachers in a school, the police and/or military clearing the streets and park of a president needing to go to a church to hold up a bible, pardoning thousand or so insurrectionists, imagine 5 or 10 million AR15’s in the hands of pardonable con-servatives vs sign wielding protesting “sissies”.
“…con-servatives have no problem with guns…”
As I recall from some preliminary research I did on guns a few years, about 3% of all gun-owners own half of all the guns in this country* where there are more guns than people. Half of gun-owners, 32% of USAmerica, own 10 guns or more.
This makes me think that although the number of guns here is considerable, the number of those who are available to use them is lower than what is usually feared. By a large margin.
Not saying don’t worry. Just saying be realistic.
*I haven’t confirmed my memory so, if you want to use that figure, please check if it’s still correct before passing it on.
“the number of guns here is considerable, the number of those who are available to use them is lower than what is usually feared. By a large margin.”
So on J6, 2021, just one or a few brought a large stash (one or more stash?) of weapons because he/they would be able to use all of the weapons on their own?
https://www.nbcnews.com/politics/justice-department/oath-keeper-testifies-massive-gun-pile-stashed-hotel-eve-jan-6-rcna51749
Alito NOT a happy camper this morning.
He can retire any time; he’ll get a nice pension, and have fewer headaches.
He just won’t be able to try to turn the clock back to the 17th century.
Since you bring up retire, yesterday on his “Le Show”, Harry Shearer asked why all the Republican pols are so worried by the Trump and Musk threats about being primaried since most likely when they leave office they will make multiple times more dollars as lobbyists or whatever than as pols.
See that, Shearer was right: “Shares of Ramaco Resources (METC) opened the session higher Monday when the coal miner announced that former West Virginia Governor and Senator Joe Manchin was named to the board…. The company cited Manchin’s years of government experience in supporting the coal industry.”
https://finance.yahoo.com/news/ex-west-virginia-governor-senator-144304920.html
Alito’s five-page dissent “with whom JUSTICE THOMAS joins” now available on SC docket at https://www.supremecourt.gov/opinions/24pdf/24a1007_22p3.pdf .
The last words of Alito’s dissent: “ I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.
Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam), and this Court should follow established procedures”
The ‘inmates’ in the El Salvador prison that we’re not charged with a crime and were given no chance of due process, might disagree with Justice Alito as to no need to the courts not needing to rush. Alito’s final comment about the obligation of the Executive branch to follow the law can only be seen as a cruel joke.
As it seems, currently, not only is the president unaccountable under the law but so is Alito and the other justices. There is no need to hurry and miss a nice evening at home. Its not like ICE, DHS and the DOJ are going to spirit anyone out of the country without due process. The Executive branch, like the Court, is restrained by and rooted in respect for the law and the Constitution. Nobody was bussing 28 people to a one-way flight to El Salvador in the weekend night. Never would happen. Thank god seven of them still have a shred of sensible decency. Or at least self-preservation.
When I woke up this morning, I took notice of two news stories.
One was about Alito’s dissent, and his belief that the 7-2 emergency order issued in the middle of the night was not appropriate or necessary. Both the Executive and the Judiciary should follow the law, he said.
The other was this horrifying NBC News story about how on Friday night, as ACLU lawyers frantically tried to get a court order to pause the process, ICE loaded at least 28 Venezuelan detainees on buses in Texas and drove them to the airport (after trying to get them to sign papers in English, titled “Notice and Warrant of Apprehension and Removal under the Alien Enemies Act”.) some of them were told they were going home to Venezuela, but others were told they were going to El Salvador.
Fortunately, the motorcade turned around at the airport. Perhaps those detainees would be in CECOT by now had the Supreme Court not issued their emergency middle-of-the-night order.
But yeah, Alito, tell us again how the Supreme Court stepping in before the gov’t even had a chance to file its argument was unnecessary and premature! Fucking asshole.
Writing for Slate, Mark Joseph Stern points out that Alito’s dissent was far too credulous about the government’s intentions.
Alito’s Emergency Deportation Dissent Misrepresents the Most Crucial Fact in the Case