The tsunami of court orders that has been washing over the Trump administration—he “can’t do this,” he “must do that”—has me wondering where it all will end. Will the multifarious injunctions, restraining orders, and appeals finally paralyze Trump’s agenda? An agenda, I hasten to point out, on which he was elected, so, given the strength of his victory, it is also the American people’s agenda.
I don’t know. The attacks have been extraordinary not only in number but also in depth. The president and his lieutenants have, in effect, been told that they cannot hire and fire whom they wish or enter into or terminate what contracts they wish; in some cases, they are even forbidden to know what payments have been made by the agencies they nominally direct. Law enforcement and foreign policy are, or at least used to be, executive branch responsibilities. But the courts have gone to extraordinary lengths to insinuate themselves into those processes.
On April 4, Paula Xinis, a Maryland district court judge appointed by Barack Obama, ordered that the Trump administration must “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.”
As all the world knows, Garcia, an illegal alien, had been sent to enjoy the hospitality of El Salvador in March. It turns out that his deportation to El Salvador had been a mistake, an “administrative error.” This was not because he did not deserve to be deported. He most certainly did. However, he had previously been granted “withholding of removal” status by a judge in 2019 because, though El Salvador was his native land, he said he was threatened by gang members of MS-13 there. That meant that while Garcia could be deported, he could not be deported to El Salvador.
There are several ironies in the case. One is that MS-13, once a scourge of El Salvador, has been effectively neutered there by Nayib Bukele, the president. Indeed, Bukele has transformed El Salvador from “the murder capital of the world” into one of the safest countries in the Western Hemisphere.
A further irony was that Garcia is widely reputed to be a member of MS-13. He now disputes the charge, though it was credible enough that US immigration officials were just about to rescind his special status when the controversy over his deportation broke. The gravamen of the controversy turned on the question of “due process.” Had Garcia had his fair share? Some say yes, some say no. I place myself among the former, but it is clear that the question of what sort of process is due to someone who came to this country illegally is a fraught one.
More than 11 million people crossed into this country under Joe Biden’s watch. Will each individual require his own legal process before being eligible for deportation? Going through the motions of that process would take decades, if not, as some have argued, centuries.
To forestall that unhelpful eventuality, I would like to suggest an expedient to the various courts. I got the idea from the mass weddings presided over by Reverend Sun Myung Moon of the Unification Church. The enterprising and entrepreneurial clergyman would preside over 5,000, 10,000, or even 20,000 happy couples at a time. Thus, large batches of new church members would be minted in a single go.
Could not the American judiciary take a page from the book of Reverend Moon and conduct, not mass weddings, but mass hearings to confer the golden halo of due process upon thousands of potential deportees at a time? Especially after our experience with COVID, when just about every human action was virtual or by proxy, why can we not hold hearings by proxy to determine the immigration and deportation status of likely candidates? Even at 20,000 per session, it would be a tedious process, but how much more efficient than taking each miscreant individually? I offer the idea free and for nothing as my contribution to salvaging the reputation of the judiciary, recently so tainted by its inveterate anti-Trump bias.
I have one other idea I’d like to offer for reform. There has been a flurry of additional opinions, orders, and such like in the aftermath of Judge Xinis’s demand that the government take steps to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States.” Even the Supreme Court has weighed in on the issue. The due date on Judge Xinis’s original demand has come and gone. Garcia is still in El Salvador, apparently enjoying drinks with U.S. senators worried about his spirits and safety.
According to my dictionary, “facilitate” means to make it easier to bring something about. “Effectuate” means actually to make something happen. Judge Xinis was reticent to the point of obscurity when it came to the details of fulfilling this ambition. J. Harvie Wilkinson III, Chief Judge of the United States Court of Appeals for the Fourth Circuit, weighed in with a little reading lesson about the word “facilitate.” It is, the judge tells us, “an active verb. It requires that steps be taken, as the Supreme Court has made perfectly clear.” Not only that, he explained, the decision by the Court “does not . . . allow the government to do essentially nothing.”
What then should the government do? Judge Wilkinson offers a little throat clearing, specifying a few things that “facilitation” does not mean or entail. But he does not, I think, go far enough. I suggest that President Trump come right out and ask him, man to man: How would Judge Wilkinson have Trump conduct his foreign policy? What should he do as president? Trump should invite Wilkinson, and Chief Justice John Roberts if need be, to the Oval Office. Perhaps the judge and justice could sit in on Trump’s call to Nayib Bukele, asking that he release Garcia. Perhaps they could place the call themselves.
And what if Bukele refuses? Judge Xinis ordered that Trump not only facilitate but also effectuate—that is, actually bring about—Garcia’s release. Perhaps Trump should threaten to invade El Salvador. Perhaps he should ask the judges to place the call and issue the order to be sure our foreign policy was conducted in a manner pleasing to them.
If that seems like untoward—not to say unconstitutional—interference of the third, “least dangerous” branch of government into the affairs of the second, executive branch, don’t kid yourself: it is. But the nagging question is whether the recent, high-minded expostulations and orders flowing out of these various courts and the mouths of these preening jurists have been any less egregious. The jury is still out on that question.
Prior to the 18th century law did the Constitution prevent the Chief Executive from doing his job? No, it did not. That Law did not change that. The Law directed and demanded he do his job.The Legislature cannot use a statute, a law or regulation to take away the President’s plenary power when dealing with dangerous foreign invaders, vetted or not vetted, and neither can the Judiciary, based upon the Separation of Powers Doctrine. An Amendment, such as the 22nd, would have to be ratified by either of the two Amendment processes.
It is ridiculous to misinterpret Legislative Law to conclude that it restricts the President from protecting Americans except in war times. Congress, by passing the 18th century law, did not take away the Executive’s authority to protect America, using deportations, at all other times. Neither Congress, or the Supreme Court, has that authority.
The President is oath bound to remove foreign, illegal dangerous criminals. The Founders would never have ratified the Fifth Amendment with the idea that a future unelected judicial oligarchy would use it to neuter the Executive by allowing each invading member to be afforded Due Process and Habeas Corpus. Furthermore the 14th Amendment, specifically, had only black slaves in mind.
What Trump has to do is to reassert his authority, plainly and simply, without using the Wartime Act, and by doing such he corners Roberts and the rest of the Court and forces him to conclude that the Judiciary is the Superior Branch. Basically Marbury v. Madison needs to be affronted and defeated. That will force the Court to face the Constitution head on.
The SCOTUS ignored Due Process when it came to Korematsu v. United States as well as President Eisenhower’s removal of illegal Mexicans at the bequest of Caesar Chavez. Furthermore, removing such illegals does not deprive them of their lives, their liberty (other than in the US), and their property. In fact Eminent Domain has often been used to confiscate property without Due Process.
It is not President Trump that is creating a Constitutional Crisis. It is the Judiciary. I have often remarked that the Court, in regards to the other Branches of Government, can only be advisory else the Separation of Powers Doctrine has no relevance and nothing makes that more obvious than this SCOTUS recent ruling. Roberts knowns better. Now, more than ever, he should be suspected of being compromised. The DOJ, in the name of transparency, needs to make efforts to find out if such has happened and, if true, by whom.
Democrats are using the judiciary to fight deportation as though their life depends on it because politically it does. The Democrat party is a failure among the American people and cannot retain total power (their goal) without illegally importing a massive, impoverished underclass. This is a judicial insurrection designed to achieve that goal.
I’ve always viewed it as a great shame that normal people pay so much attention to leftists. The country would not only function better if leftists were ignored, but it would also be a happier place. Leftists can’t be happy unless they’re making normal people unhappy. Allowing them to inject themselves into any consideration of importance will always be a downer. The fear that leftists could be shunned for good after the election results might be the beating heart and soul of the activist judges’ obstructionism against the Trump administration. The left has lost the war everywhere else. But activist judges will carry on the fight, functioning as legal obstructionists in the left’s cultural war against America. The Supreme Court must step in to undo the mess and remove the potential for a constitutional crisis. For now, though, it humors the activist judges like one would a hyper-insistent mental patient. But if the high court can afford to give their ravings undue consideration, the country can’t afford its legal high-mindedness on behalf of The Blob and its chapters elsewhere.
I keep reading from supposedly knowledgeable writers and pundits, that SCOTUS–especially the perfidious Chief Justice–will eventually come around to recognizing the rightful powers of the Executive Branch and collectively rap the knuckles of nefarious district court judges.
I think that is misplaced optimism which will lead to dashed hopes.
Worldwide, the judiciary has begun to elevate itself as the final (ultimate?) arbiter of what is legal and politically permissible. This aggregation of power by the judiciary is not confined to the US, but has been exercised in Canada, Israel, the UK, France, Romania, Germany and a host of other countries. And no doubt, John Roberts & Co. are keenly aware of this globalist trend.
Seeking approval from Georgetown’s cool kids, and the international judiciary, it strains credulity that Roberts will suddenly develop a Constitutional conscience and adhere to the textual intent of a 200 year-old piece of parchment.
Not gonna happen.
We must expect SCOTUS to grant the Trump administration only the barest of judicial relief–if that–while simultaneously providing leftist lawfare orcs and multitudinous district court judges plenty of legal runway to paralyze the Trump administration till the end of time.
Who says elections matter?
SCOTUS–and the judiciary worldwide–wishes to be the ultimate arbiter of what is politically and legally permissible.
If John Roberts wishes to aggregate power to himself and his puffed-up potentates of permission, perhaps Trump should ask Justice Roberts how many divisions he commands?