The Fourth Circuit requires the President to control the actions of a sovereign foreign nation based upon the broadest possible interpretation of its jurisdiction
The Fourth Circuit recently issued an opinion and order denying the request of the Executive Branch for a stay of the ruling of trial court Judge Paula Xinis that the government “facilitate” the return of an El Salvadorean national recently deported and currently held in his home country. (See https://storage.courtlistener.com/recap/gov.uscourts.ca4.178400/gov.uscourts.ca4.178400.8.0.pdf.) Note that the Hon. Paula Xinis is, in correct parlance, a judge of the United States District Court for the District of Maryland; however, given the alarming trend of such judges to issue “injunctions” of nation-wide import directing how the Executive Branch shall operate, the fact that District Courts were created as trial courts for specific and limited geographic regions is of genuine Constitutional importance.
The most salient portion of the opinion is quoted below, and this paragraph sounds more like an argument of a party to the case than considered judicial decision-making, and, towards that, contains the sort of brazen omissions of key facts for which junior attorneys are often excoriated:
That our courts believe they have jurisdiction to order the Executive Branch to undertake "actions" that in turn will cause the “actions” of foreign nations (see the phrase "active verb" quoted below) is made clear by the opinion:
Analysis: Our American Republic cannot function when the Courts believe they have unlimited jurisdiction
Given that the "stay" requested of the trial court order is extraordinary relief, it is not unusual in and of itself that the stay was denied the Circuit Court and, therefore, the lower court was permitted to proceed. However, the opinion sets forth in no uncertain terms that it denies the stay because the District Court is correct. Correct not only in its "remedy" of requiring the government to facilitate the return of a foreign national from his home country, but also that it has jurisdiction over not only the United States government (which it does) but also what happens to a foreign citizen, in a foreign country (which is does not).
This brief opinion is, then, most notable for what it does not contain. While technically true, calling Mr. Abrego Garcia a "resident" of the United States is so deficient as to almost equal intentional obfuscation.
The gentleman is in fact a citizen of the nation of El Salvador, and is currently incarcerated in his home country, a key fact deliberately not stressed, if not outright omitted, by the opinion.
Indeed, nowhere in the opinion is it is mentioned that this man is a citizen of another country and is currently being held by this country. The opinion only mentions the word "citizen" once (and the word "national" does not appear at all) as part of the broad statement that the government may not deport "American citizens" without due process. If one were reading the opinion alone, one might ask: why doesn't El Salvador just return this man to his "home" country, America?
The Fourth Circuit recently issued an opinion and order denying the request of the Executive Branch for a stay of the ruling of trial court Judge Paula Xinis that the government “facilitate” the return of an El Salvadorean national recently deported and currently held in his home country. (See https://storage.courtlistener.com/recap/gov.uscourts.ca4.178400/gov.uscourts.ca4.178400.8.0.pdf.) Note that the Hon. Paula Xinis is, in correct parlance, a judge of the United States District Court for the District of Maryland; however, given the alarming trend of such judges to issue “injunctions” of nation-wide import directing how the Executive Branch shall operate, the fact that District Courts were created as trial courts for specific and limited geographic regions is of genuine Constitutional importance.
The most salient portion of the opinion is quoted below, and this paragraph sounds more like an argument of a party to the case than considered judicial decision-making, and, towards that, contains the sort of brazen omissions of key facts for which junior attorneys are often excoriated:
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. (Emphasis added.)
That our courts believe they have jurisdiction to order the Executive Branch to undertake "actions" that in turn will cause the “actions” of foreign nations (see the phrase "active verb" quoted below) is made clear by the opinion:
The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It 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.” Abrego Garcia, supra, slip op. at 2. “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 (“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2, is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador. (Emphasis added.)
Analysis: Our American Republic cannot function when the Courts believe they have unlimited jurisdiction
Given that the "stay" requested of the trial court order is extraordinary relief, it is not unusual in and of itself that the stay was denied the Circuit Court and, therefore, the lower court was permitted to proceed. However, the opinion sets forth in no uncertain terms that it denies the stay because the District Court is correct. Correct not only in its "remedy" of requiring the government to facilitate the return of a foreign national from his home country, but also that it has jurisdiction over not only the United States government (which it does) but also what happens to a foreign citizen, in a foreign country (which is does not).
This brief opinion is, then, most notable for what it does not contain. While technically true, calling Mr. Abrego Garcia a "resident" of the United States is so deficient as to almost equal intentional obfuscation.
The gentleman is in fact a citizen of the nation of El Salvador, and is currently incarcerated in his home country, a key fact deliberately not stressed, if not outright omitted, by the opinion.
Indeed, nowhere in the opinion is it is mentioned that this man is a citizen of another country and is currently being held by this country. The opinion only mentions the word "citizen" once (and the word "national" does not appear at all) as part of the broad statement that the government may not deport "American citizens" without due process. If one were reading the opinion alone, one might ask: why doesn't El Salvador just return this man to his "home" country, America?
Moreover, the idea that the President of El Salvador would not want such a man sent somewhere else appears inconsequential to American courts. The arrogance here is that the wishes of El Salvador towards its own citizen is of no import; Mr. Abrego Garcia must be returned to the United States because he was a “resident” and the United States should somehow force El Salvador to do so.
Finally, it is quite ironic that the opinion ends by once again quoting none other than Alexander Hamilton and his writing in The Federalist, no. 70, the Fourth Circuit stating
And yet this is exactly what the trial court and intermediate appellate courts have sought to do here by requiring that the President of the United States undertake specific actions to control the actions of a foreign leader. It is doubtful Mr. Hamilton would have approved of a court ordering the Executive Branch to somehow force a foreign government to hand over one of their citizens so they may be returned to the United States. As he stated in The Federalist no. 78, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." Of course this was written before trial courts began instructing the detailed operations of the Executive Branch by way of nation-wide "injunctions" directing foreign policy, the disbursement of money, the path of planes, etc.
Yet the Fourth Circuit lectures the Executive Branch about the "rule of law," something that depends in large measure upon Courts recognizing the limits of their jurisdiction. Even worse, the appointed but not elected Fourth Circuit dares to call an Executive Branch headed by a Democratically-elected President "lawless:"
We humbly assert the Judicial Branch has much more to lose here than does the Executive Branch. Respect for the Judiciary has been (until now) largely based upon its self-restraint and neutrality as Judges follow but do make either law or policy decisions. Just as the public depends upon the Judiciary to resolve disputes between citizens and the Executive and Legislative Branches rely upon the Judiciary to interpret the law, the Judiciary depends upon the Executive and Legislative Branches to support (and fund) the Judiciary and the American public to respect and abide by its decisions.
Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. Courts thus speak with the knowledge of their imperfections but also with a sense that they instill a fidelity to law that would be sorely missed in their absence. “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 yet this is exactly what the trial court and intermediate appellate courts have sought to do here by requiring that the President of the United States undertake specific actions to control the actions of a foreign leader. It is doubtful Mr. Hamilton would have approved of a court ordering the Executive Branch to somehow force a foreign government to hand over one of their citizens so they may be returned to the United States. As he stated in The Federalist no. 78, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." Of course this was written before trial courts began instructing the detailed operations of the Executive Branch by way of nation-wide "injunctions" directing foreign policy, the disbursement of money, the path of planes, etc.
Yet the Fourth Circuit lectures the Executive Branch about the "rule of law," something that depends in large measure upon Courts recognizing the limits of their jurisdiction. Even worse, the appointed but not elected Fourth Circuit dares to call an Executive Branch headed by a Democratically-elected President "lawless:"
The Executive [Branch] will lose much from a public perception of its lawlessness and all of its attendant contagions.
We humbly assert the Judicial Branch has much more to lose here than does the Executive Branch. Respect for the Judiciary has been (until now) largely based upon its self-restraint and neutrality as Judges follow but do make either law or policy decisions. Just as the public depends upon the Judiciary to resolve disputes between citizens and the Executive and Legislative Branches rely upon the Judiciary to interpret the law, the Judiciary depends upon the Executive and Legislative Branches to support (and fund) the Judiciary and the American public to respect and abide by its decisions.
There appears to be absolutely no self-reflection upon the part of our courts today that acting as if there were no geographic or geopolitical limits upon their jurisdiction and authority will cause them to, to use the wording of fine justices of the Fourth Circuit, “lose much” in the eyes of the public.
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