The Fourth Circuit Court of Appeals says they will not block a lower court order demanding the government “facilitate” Kilmar Abrego Garcia’s return to the United States. The Trump administration says a district court judge in Maryland is unfairly limiting the president’s constitutionally guaranteed executive powers. 

Judge Paula Xinis of the district of Maryland has ordered the government to “facilitate” and “effectuate” the return of Mr. Abrego to his family back in Maryland. He and his wife — who is a native-born citizen — have one child together. 

The Trump administration insists that they are willing to facilitate his return because there are no domestic barriers to his entry. He can very well book a flight from San Salvador to Maryland and he will not be barred from touching down in the United States, the government says. The problem, is that it is up to President Bukele to release Mr. Abrego — something Mr. Bukele says he will not do. 

The government has asked the Fourth Circuit to put a hold on Judge Xinis’s order to “facilitate” the return, though a unanimous decision from the Fourth Circuit on Thursday closed the door on that possibility. 

A three-judge panel wrote a unanimous decision Wednesday that they would not overrule Judge Xinis. Of the jurists on the panel, one of the judges was appointed by President Reagan, one by President Clinton, and one by President Obama. 

“The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision,” Judge Harvie Wilkinson — the Reagan appointee — writes for the court. 

Judge Wilkinson did not hold back in his decision, writing that oftentimes he has to deal with difficult cases from the bench, though this one 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,” he says. “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 government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” he added.

Judge Wilkinson went even further, saying that by disobeying a court order now could lead the executive branch down a very dark road, both for President Trump’s enemies and his allies, should power exchange hands one day, which it will. 

“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?” Judge Wilkinson asks.

“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,” he adds. 

Over the course of the next ten days, Mr. Abrego’s attorneys will have the opportunity to depose individuals who have been involved in this case, including top officials from the Department of Homeland Security, the Department of Justice, and Immigration and Customs Enforcement. 

Judge Xinis has warned the government that she is prepared to move quickly so they can find a remedy for this. “Cancel vacations. Cancel other appointments,” the judge said at a hearing this week. “There is no tolerance for gamesmanship or grandstanding.”