Lifted from the no

I’m grateful today for the Judiciary Branch, which is basically the only official thing holding democracy together right now, the only element consistently saying “no” to the Kleptocrat. I don’t know how much longer they can keep it up, but they’re giving us space and time to get our resistance act together, for which I am very thankful.

Two things in particular happened last week:

In response to the administration’s request for a stay of the lower court’s order to return Kilmar Abrego García from the El Salvadoran prison to which he had been illegally deported, the Fourth Circuit panel ruled (even before Abrego García’s attorneys could file their response) that the government needs to pull its finger out and bring the man back.

It’s not only the fact of the ruling, it’s what Judge J. Harvie Wilkerson wrote that’s so breathtaking. (Full order here.) I quote:

“Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. 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. 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. 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. Perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that that position will prevail in proceedings to terminate the withholding of removal order. In other words, if it thinks it’s got such good factual proof of that, what is it so worried about? It can present it, and it should prevail in getting him removed from this country.

“Moreover, the government has conceded that Abrego Garcia was wrongfully or mistakenly deported. Why then should it not make what was wrong right?

“Let me just repeat that. Why then should it not make what was wrong right?”

And:

“The executive possesses enormous powers to prosecute and to deport. But with powers come restraints.

“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? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies? That threat—even if not the actuality—would always be present.

“And the executive’s obligation to ‘take care that the laws be faithfully executed’—that’s a quote from the Constitution, Article II—would lose its meaning.

“Today, both the United States and the El Salvadoran government disclaim any authority and/or responsibility to return Abrego Garcia. We are told that neither government has the power to act. That result will be to leave matters generally—and Abrego Garcia specifically—in an interminable limbo without recourse to law of any sort.

“The basic differences between the branches mandate a serious effort and mutual respect. The respect that courts must accord the executive must be reciprocated by the executive’s respect for the courts.

“Too often today, this has not been the case—as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate.”

And, pointedly:

“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. 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. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”

That is one beautiful piece of writing and I bow down before it.

My second cause is surprisingly from SCOTUS, which very early Saturday morning blocked, pending further order of the court, the administration from deporting any more Venezuelan immigrants from Texas. ICE was even at that moment sending buses full of said immigrants (alleged gang members, but without benefit of due process) to an airport to fly them away, and the buses literally turned around and returned the men to a detainment center.

Naturally, Alito and Thomas dissented, but it’s a remarkable thing that Roberts not only got the decision through, but so fast. (It's nowhere near as elegant as Wilkerson's, of course.)

These are both amazing things, and they fill my heart with thanks.

I know we’ve already had e.e. cummings before this month, but I’m always grateful for him, and this is a poem about gratitude:

i thank You God for most this amazing
day:for the leaping greenly spirits of trees
and a blue true dream of sky;and for everything
which is natural which is infinite which is yes

(i who have died am alive again today,
and this is the sun's birthday; this is the birth
day of life and love and wings and of the gay
great happening illimitably earth)

how should tasting touching hearing seeing
breathing any-lifted from the no
of all nothing-human merely being
doubt unimaginable You?

(now the ears of my ears awake and
now the eyes of my eyes are opened)

  

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