The pushback against Trump's lawlessness is real — and making a difference

Sen. Van Hollen from Maryland met with Abrego Garcia, while Judge Wilkinson, a Reagan appointee, explained how wrong the Trump admin is here.

Kilmar Abrego Garcia meeting with Sen. Chris Van Hollen. (Source: @vanhollen.senate.gov/Bluesky)

A little before 3 p.m. Thursday, Judge J. Harvie Wilkinson, an 80-year-old Reagan appointee, explained for a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit how deeply, alarmingly wrong the Trump administration is with its actions regarding Kilmar Abrego Garcia.

“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. 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,” Wilkinson wrote. “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Six hours later, Sen. Chris Van Hollen of Maryland — who went to El Salvador personally to see what was going on here — posted a picture of him talking with Abrego Garcia in person.

“I said my main goal of this trip was to meet with Kilmar. Tonight I had that chance,” Van Hollen wrote. “I have called his wife, Jennifer, to pass along his message of love. I look forward to providing a full update upon my return.”

It is nowhere near the end, we do not yet even know how it will end, and there will be many more disturbing developments before it does, but Thursday was a day for seeing why standing up matters — and can make a difference.

The Trump administration is so clearly proceeding so dangerously and lawlessly in this case — with its implications for Abrego Garcia, all people in America, and the rule of law — and in other areas across the government (and those are just examples from Wednesday and Thursday) that people and institutions with substantial standing and even authority are starting to push back.

And, importantly, we are seeing that it has effects.

Nowhere was the pushback more stark for the legal world than when Wilkinson’s opinion was issued — technically simply an order denying the Justice Department’s request that the Fourth Circuit stay, or block, U.S. District Judge Paula Xinis’s April 10 order that the government “facilitate” Abrego Garcia’s return.

But, from the beginning, the order — in which he was joined by Judge Robert Bruce King, a Clinton appointee, and Judge Stephanie Thacker, an Obama appointee — was clear from its words that this was much more.

That was not your ordinary stay denial.

Nor should it have been. And that’s the point. This was an order with a point. And, while it made a point to the Justice Department lawyers who filed the request, as well as to Trump, Homeland Security, ICE, and the State Department, I think it is quite likely that it was also making a point to his superior court, the U.S. Supreme Court — and to the public.

This is an easily digestible, seven-page ruling, so I’m going to go through it.

“The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not,” Wilkinson wrote. “Regardless, he is still entitled to due process.“ Additionally, he noted, the government admitted his removal was a mistake.

“Why then should it not make what was wrong, right?“

Take note, Sebastian Gorka.

From there, Wilkinson moved to the Supreme Court’s order in the case:

The Supreme Court’s decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” … 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.” … “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear.

That was not the end of that. In fact, he was just getting warmed up:

Wilkinson then noted, “The government is obviously frustrated and displeased with the rulings of the court. Let one thing be clear. Court rulings are not above criticism. Criticism keeps us on our toes and helps us do a better job.” While courts can and do “overstep” at times, he wrote that they act “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.”

That’s the judiciary. But what about the executive?

From there, he discussed the respect given to the “energy” in the executive, citing The Federalist Papers, noting how that “can rescue government from its lassitude and recalibrate imbalances too long left unexamined.”

But, turning back to the case at hand, he wrote:

That point echoes the warnings from Justice Sotomayor in both her Alien Enemies Act dissent and her statement regarding the order in Abrego Garcia’s case.

Swooping back out, Wilkinson all but directly turns to Trump:

He then invoked former president Dwight Eisenhower: “Putting his ‘personal opinions’ aside, President Eisenhower honored his ‘inescapable’ duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools ‘with all deliberate speed.’“ That was essential, he noted, quoting Eisenhower: “[U]nless the President did so, anarchy would result.”

Of this moment, Wilkinson then wrote, “Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both.“

Looking back at Trump — as well as at Attorney General Pam Bondi, Secretary of State Marco Rubio, and Homeland Security Secretary Kristi Noem — Wilkinson concluded:

In his more than 40 years on the appeals court, Wilkinson has been known as one of the most sharp, conservative voices in the nation.

His statement on Thursday, joined by his colleagues, is a message that few in the legal world will miss, is a warning that members of the Trump administration and the president himself must understand, and is a lesson for us all.