People attend a protest against the deportation of Kilmar Armando Abrego Garcia.Robyn Stevens Brody/Sipa USA via AP
A conservative federal judge just issued a dire warning: The government must bring Kilmar Abrego Garcia back to the United States after he was illegally deported to a brutal Salvadoran prison, or else the country will descend into lawlessness. The opinion, from the 4th Circuit’s J. Harvie Wilkinson III and joined by two colleagues, is an extraordinary document—and is all the more notable coming from a judge who has long championed presidential power.
“The government is asserting a right to stash away residents of this countryin foreign prisons without the semblance of due process that is the foundation of our constitutional order,” Wilksinson wrote in an opinion Thursday rejecting the government’s request to halt a district court order that it takes affirmative steps to retrieve Abrego Garcia and vacate an order for discovery into these efforts. “Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.”
Just to recap what has happened thus far: On March 15, the Trump administration flew Abrego Garcia on the third of three flights taking immigrants to El Salvador’s notorious terrorism confinement center, known as CECOT, where prisoners are only expected to leave in a coffin. It did so illegally because in 2019, an immigration judge had issued an order that Abrego Garcia not be returned to El Salvador, his country of origin. The administration has admitted in court that the deportation happened due to “administrative error”—but it has argued that despite that error, it will not and cannot return him. “That’s up to El Salvador if they want to return him. That’s not up to us,” Attorney General Pam Bondi said during a press conference Monday. The logic is terrifying not only for Abrego Garcia: No matter the law, you can be taken to a foreign prison and left to rot.
One week ago, the Supreme Court ordered the administration to “facilitate” Abrego Garcia’s return. It instructed the district court to act “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” but also expected that the administration would comply and “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Thursday’s opinion grasps the gravity of the situation. It orders the government to take active steps to bring Abrego Garcia back to the United States and rejects the government’s assertion that the courts cannot require it to actively seek his release.
“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?”
For the past week, the government has argued that it needs to do virtually nothing. “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” Wilkinson wrote. “And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’ would lose its meaning.”
Wilkinson’s words will likely be taken seriously by Chief Justice John Roberts and possibly the other GOP-appointed justices because he is one of them. A Reagan appointee, Wilkinson is a conservative jurist who, during the height of the War on Terror, wrote an opinion upholding the president’s wartime authority to detain US citizens indefinitely. And it was Wilkinson’s concurrence in this same case that gave the Supreme Court the “facilitate” language it had recently adopted. Wilkinson’s clarion warning today sends a strong signal to the justices, the conservative legal community, and the country that we are careening toward crisis. What remains unknown is if there’s any way to stop it now.
In concluding his opinion, Wilkinson accurately warns that without compliance, the checks and balances of our system will fail. And he essentially pleads with the Trump administration to come to its senses. “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,” he wrote. “This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”
Wilkinson’s writing also, if implicitly, is directed at the Supreme Court, where this case may be headed once again. A week ago, the Supreme Court stressed deference to the executive all while upholding the district court’s effort to return Abrego Garcia. But at some point, the justices will either have to call out the administration for failing to act—or throw up their hands and sanction Trump’s lawlessness. Wilkinson’s opinion is a warning to avoid that outcome.