Not since the American Revolution, when Paul Revere rode through the streets of Boston and Thomas Paine published his famous Common Sense, have Americans received a more urgent wake-up call to the looming danger to their liberty than they did this week. This time, the alert came from no revolutionary, but a Ronald Reagan-appointed federal judge.
J. Harvie Wilkinson, a well-respected and deeply conservative judge on the United States Court of Appeals for the Fourth Circuit, wrote about the plight of Kilmar Garcia, who was mistakenly deported by the Trump administration last month. Despite court orders, the administration refuses to lift a finger to right that grievous wrong.
Wilkinson said Garcia’s deportation threatens to “reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
Pointing out its defiance of an order from the Supreme Court, Wilkinson reminded his readers that “the rule of law…(is) vital to the American ethos.” And he noted that Garcia’s case presents a “unique chance to vindicate that value and to summon the best that is within us while there is still time.”
Time, Wilkinson warned, is running out on American democracy. His words call on his colleagues on the Supreme Court, Republican members of Congress, business leaders, law firms, universities, and citizens to demand Garcia’s return and stand up to the almost daily abuses of power by the Trump administration.
For decades, the eighty-year-old Wilkinson has been a darling of the conservative legal movement. Appointed to the bench by President Ronald Reagan in 1983, he has a long track record as an opponent of abortion and judicial legalization of gay marriage. He was rumored to be on the shortlist to replace the late Chief Justice of the United States, William Rehnquist. Most importantly, he regularly has defended presidential power.
In a 2003 case that has some eerie parallels to Garcia’s, Wilkinson wrote an opinion that the New York Times called “a major legal victory” for the administration of President George W. Bush. He ruled that “a wartime president can indefinitely detain a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer.” The judge said, “It was improper for the federal courts to probe too deeply into the detention of Yasser Esam Hamdi, a 22-year-old American-born Saudi who was captured on the battlefield in Afghanistan and is now imprisoned in a military brig in Norfolk, Va.”
That brings us back to the Garcia case.
Garcia entered this country illegally in 2011 and was granted temporary protective status in 2019, during Trump’s first term. On March 12 of this year, he was “pulled over while driving, his 5-year-old in the back seat. He was told his immigration status had changed.” Thirteen days later, without a trial of any kind, Garcia was flown to El Salvador and imprisoned as a terrorist member of the MS-13 street gang.
As New York Times columnist Ezra Klein explains, “There has been no evidence, anywhere, offered by anyone, that suggests Abrego Garcia poses a threat to anyone in this country.”
Lawyers for Garcia sued, seeking an order to return him to the United States. They alleged that the government had violated his right to due process of law and provisions of the Immigration and Nationality Act, the Administrative Procedure Act, and federal habeas corpus law. Federal District Judge Paula Xinis granted their request. She directed the federal government “to 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.” Since then, the Fourth Circuit and the Supreme Court have upheld Xinis’ order.
A unanimous Supreme Court said that Xinis’s order “properly 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.” Leaving no doubt about its intention, the Court sent the case back to Xinis with the directive that “the District Court should continue to ensure that the Government lives up to its obligations to follow the law.”
When Xinis acted to implement that directive, the administration again appealed to the Fourth Circuit seeking an emergency stay to prevent her from doing so.
Enter Judge Wilkinson.
His opinion, turning down their request, is a masterpiece of legal writing, clear, free of unnecessary jargon, and to the point. It is written both for the present moment and the future judgments of history.
Wilkinson began by praising “the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.” In so doing, he pushed back against any Trump Administration effort to malign her.
Moreover, resisting the administration’s efforts to throw sand in the machinery of justice, Wilkinson characterized Garcia’s case as easy and the court’s duty as “clear.” He explained, “It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all.”
That is because “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.”
“This,” he continued, “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
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Wilkinson insisted that the government defied the nation’s highest court by “do(ing) essentially nothing.”
Quoting from the Supreme Court’s decision that the government has a duty to facilitate Garcia’s return, Wilkinson offered a simple grammar lesson. “Facilitate’ is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear.”
He linked our fate to Garcia’s by reminding his readers that if the government gets away with denying him due process and making him disappear from this country, it may soon do the same thing to any one of us. In the end, as if leading us back to Paul Revere and Thomas Paine, Wilkinson said Garcia’s deportation threatens to “reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
What Paine said in his time is also true today. “The present state of America,” he wrote, “is truly alarming to every man who is capable of reflection.”
But in a time of peril, Paine continued, “instead of gazing at each other with suspicious or doubtful curiosity, let each of us hold out to his neighbor the hearty hand of friendship, and unite in drawing a line, which… shall bury in forgetfulness every former dissention.”
Using words that have special meaning today, Paine asked his contemporaries to remember that in America, only “the law is king” and to be “virtuous supporter(s) of the RIGHTS of MANKIND.”
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