A three-judge panel for the 4th U.S. Circuit Court of Appeals again unanimously rejected a Trump administration request to overturn a lower-court order requiring it to secure the freedom of a Maryland man it erroneously sent to a hard labor prison in El Salvador.
The court, led by Reagan-appointee Circuit Judge Harvie Wilkinson, said it would not “micromanage” the district judge overseeing Kilmar Abrego García’s case.
Officials said in court filings that the Trump administration made an “administrative error” by transferring Abrego Garcia to El Salvador under the Alien Enemies Act, an 18th century wartime law President Donald Trump invoked last month.
District Judge Paula Xinis earlier this week told Trump officials to prepare for a rapid two-week probe into the government’s ongoing refusal to secure Abrego García’s freedom after she previously ordered the government to “facilitate” his release. In response, the Trump administration appealed her order.
In denying the Trump administration’s appeal, the 4th U.S. Circuit judges condemned the government for continuing to argue that it erred in transferring Abrego García to El Salvador but can’t do anything to bring him back.
“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,” the court said. “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.”
The 4th U.S. Circuit judges said the Supreme Court’s recent unanimous order in the case does not allow the government to do nothing. The judges explained that the SCOTUS order clearly commands the government to facilitate Abrego García’s release from custody in El Salvador — and give him the due process it has so far denied him.
The court again warned that the Trump administration’s argument in the Abrego García case, if permitted, would next allow it to deny due process to U.S. citizens and arbitrarily send them abroad.
The court also cautioned that the judiciary and executive branches are coming “too close to grinding irrevocably against one another in a conflict that promises to diminish both.”
“It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well,” the judges said.“We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.”