The clash is nigh
It can be hard to wrest one's attention from Trump's destruction of the world financial markets, but this morning the United State has moved one step closer to an absolute showdown between Trump's executive branch and the federal judiciary. The way it is shaping up also has the potential to tell us everything we need to know about the Roberts Court's willingness to well and truly destroy U.S. constitutional democracy.
Last week, federal District Court Judge Paula Xinis ordered the Trump regime to do everthing possible to return Kilmar Armando Abrego Garcia from an El Salvador prison to the United States by 11:59 pm Eastern on April 7, 2025 – tonight. Today, the Court of Appeals for the Fourth Circuit upheld this order, refusing the Trump executive's request for a stay, a pause in its taking effect. Both Xinis's opinion below and Judge Thacker's opinion in support of the Fourth Circuit decision deserve to be read in full. Thacker's bottom line:
The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.
Along the way, Thacker rejects the Trump executive's claim that the return order violates the separation of powers:
Critically, what the Government fails to acknowledge is that just as it is the province of the Executive to undertake its Constitutional duties within the bounds of its legitimate authority, so too is it “the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government . . . have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.
Thacker's full opinion, like Xinis's below, makes it crystal clear that the Trump regime's deportation of Abrego Garcia to El Salvador violates statutory law and is a total violation of Abrego Garcia's Fifth Amendment right to due process. In other words, the regime has not acted in conformity to the Constitution and so its removal of Abrego Garcia is null and void. The Trump executive must do all it can to bring Abrego Garcia back.
You can find coverage of the Trump regime's handling of the situation so far all over the web, including U.S. Attorney General Pam Bondi's decision to suspend the Department of Justice attorney who fulfilled his duty of candor to the trial court in the hearing before Xinis last week. That action by Bondi and the arguments the attorney's replacements advanced in the Fourth Circuit indicate that the Trump regime is unlikely to even attempt to comply with Xinis's order. It has been clear for many weeks now that the Trump executive wants a showdown with the judiciary. The one they seem to be engineering is exceptionally brazen even for them.
Having mistakenly spirited Abrego Garcia to El Salvador – a mistake the Trump executive has conceded in court – without even a shred of due process, the Trump regime has not provided any evidence for its claims that Abrego Garcia is a gang member nor has it even produced for the court a copy of a removal order pertaining to Abrego Garcia. It is wholly consistent with the evidence proffered by the Trump executive that ICE agents captured Abrego Garcia more or less randomly, and then the Department of Homeland Security, headed by Kristi Noem, rapidly removed him to a hellish incarceration in El Salvador. This incarceration is being done pursuant to a contract the Trump regime has with El Salvador, whereby the regime has outsourced the imprisonment of those it claims are in violation of the law while retaining legal custody of them. There seems to be no legitimate reason the Trump executive has not contacted the El Salvadoran authorities and requested Abrego Garcia's return. Abrego Garcia may have been injured or even killed while in El Salvadoran jail, which would be one explanation for the Trump executive effort to obscure his fate and refuse to even attempt his return, but obviously that would not justify the regime's lack of effort.
On facts like these, it might seem unthinkable that the Supreme Court would side with Trump, but we know that John Roberts and his allies on the Court are willing to do unthinkable things on behalf of the Trump executive branch. If the Court does step in and delay the district court order to return a person treated so utterly unlawfully and unconstitutionally, we will know precisely where the Roberts Court stands on Trump's efforts to convert the United States into a tyrannical, authoritarian state: one in which on the whim of the executive, people can be captured and sent to prison abroad with no notice and no hearing and where the executive's response to its own admitted error in doing this is a callous and capricious refusal to lift a finger to correct the situation.
If the district court order stands and the Trump executive does not produce Abrego Garcia or evidence that it is making every effort to do so, we will have a stark stand off between the judiciary and the executive, one in which I would fully expect the district court to find Trump regime officials in contempt of court sooner than later. If this is how things unfold, the Roberts Court will have to affirm, reject, or duck a decision about a contempt judgment. Again, the option chosen by the Roberts Court would tell us all we need to know about its willingness to end any semblance of U.S. constitutional democracy.