Yes, Things Are THAT Bad

And What To Do Now

You may have seen folks raising the alarm about the current presidential administration’s approach to well, almost everything. If you are like many of my loved ones, you see the news and wonder if things are actually as bad as commentators are making them out to be. Isn’t this just liberal alarmism?

Photo by Tingey Injury Law Firm on Unsplash

I’ve hesitated to join the conversation, mainly because this newsletter is dedicated to seminary, theology, and related subjects. I hate arguing about politics. But folks, this isn’t about politcs anymore. This is about Constitutional order and reality as we know it. Yes, the present state of things truly is THAT bad. Frankly, politics will not matter if our Constitutional order disappears.

I speak here as a law student who is listening to legal scholars and judges raise the alarm. I myself have no expertise to offer beyond a first year legal education. But when both my Federalist Society, Republican Registered Professor and my Yale-trained “liberal” Professor both give speeches¹ on the urgency of the moment with similar talking points, I pay attention. I pass along what they are communicating to you.

Background

You have likely heard of Mr. Abrego Garcia’s deportation to an El Salvadorian prison. Mr. Garcia is a legal resident of the U.S. and is married to a U.S. Citizen. In 2019, the court barred the government from deporting him. That bar remains in effect.² For this reason alone, his deportation was illegal. However, the lack of due process makes his deportation unconstitutional as well. 

The Trump administration has stated that his deportation was an “administrative error.”³ The employee who made this statement has since been fired.⁴ However, the administration has also pointed to his involvment in gang activity and domestic violence to justify his deportation. ⁵

The Constituional Issue (and What It Means)

There are three main issue at stake. First is the lack of due process in Mr. Garcia’s case. No warrant was issued for his arrest. He received no judicial hearing. Within three days of being picked up by ICE, he was transported to a Super Max prision in El Salvador.⁶ What does this mean? It means that this administration believes they have the right to defy due process. In fact, Trump has stated as much since 2018.⁷ Due process is a Constitutional right that is extended to citizens and non-citizens alike. The government may be legitimately concerned about criminal activity. That is fine. We have processes on American soil for that. Furthermore, thus far, the government has resisted any attempts to back this claim with evidence. Judge Xinis blasted the governement for this.

“Defendants cannot invoke the moniker of MS-13,” she wrote, “then object to follow-up interrogatories seeking the factual bases for the same.”⁸

Second, this action makes clear that the Trump administration is willing to disregard the law as they deported him contrary to the judiciary’s 2019 ruling. This is flagrent disregard of the court system and the rule of law. The rule of law is essential, but it is also fragile. Without the rule of law, Americans will no longer have anything to rely on for justice or equity.

This brings us to the third issue is the Trump administration’s defiance of present court orders. Our Constitutional system only works when the Executive Branch complies with the Supreme Court’s rulings. The Supreme Court recently upheld the District Court’s ruling that the Government must facilitate the Abrego Garcia’s release from custody in El Salvador and handle his case as if his deportation and imprisonment had never happened.⁹ The Trump administration has refused to “facilitate” his release, stating there is nothing they can do since he is outside U.S. jurisdiction.¹⁰ In other words, the Executive Branch is refusing to comply with the Judicial Branch. This has longterm and dire consequences for life as we know it. Law will essentially mean nothing. Our courts will be useless. The Executive Branch, rather than executing the law, will become the law.

What This Means For You

You may be thinking, “She is over-reacting.” I urge you to re-consider after reading the the 4th Circuit Opinion penned by Judge Wilkerson. This judge has a reputation for being one of the most pro-government judges on the present bench. I have included the full opinion below.¹¹ It is worth your time to consider the implications he raises.

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, 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. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?

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.” Noem v. Abrego Garcia, No. 24A949, slip op. at 2 (U.S. Apr. 10, 2025); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the “facilitation” of Abrego Garcia’s return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court’s decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.

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.” Abrego Garcia, supra, slip op. at 2. “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 (“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2 , is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.

“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.

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. See Cooper v. Aaron, 358 U.S. 1 , 24 (1958) (Frankfurter, J. , concurring) (“Criticism need not be stilled. Active obstruction or defiance is barred.”). Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. Courts thus speak 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.

“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

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?¹² 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. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The 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 at 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.

It is in this atmosphere that we are reminded of President Eisenhower’s sage example. 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.” Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Id. at 3. Indeed, in our late Executive’s own words, “[u]nless the President did so, anarchy would result.” Id.

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

What Has To Happen?

If our Constitutional system is to stand, the Trump Administration must comply with the Court. Not just in this case, but in all cases. This is a longhaul issue of which American citizens must be aware.

What You & I Can Do

1. Pray

2. Give to the organizations representing the voiceless in these issues. You may be across the political aisle from these organizations. Now is the time to put those differences aside. We can argue about abortion, gay marriage, etc. on the other side of this crisis. Frankly, your difference of political opinion will not matter if our system collapses.

3. Encourage those who are standing up for human decency, legal precedent, and Constitutional order. Write the senators, judges, journalists, and advocates who are holding the line. Republican Senator Lisa Murkowski (Alaska) has admitted that dissenting in the present enviroment is a fearful thing. Help encourage their hearts.¹³

4. Urge your Congressional representatives to stand up to this Administration if they are not presently.

5. Speak truth. Call issues and actions by true name. Stay up to date with the news. Learn to recognize propoganda and disregard it. Live not by lies.¹⁴

6. Get involved politically on the local level. Uphold the rule of law in your local setting.

7. Recognize that your neighbors are being specifically targeted by this administration without regard to legitimacy and the stress that produces. If able, provide special care.

8. Make a conscious effort to see the Imago Dei in every human and love your neighbor as yourself. This is exactly what this Administration refuses to do.

9. Read On Tyranny by Timothy Snyder.

10. Remember this is part of the treck to the Celestial City. Let the Holy Spirit and the saints of old guide you on an unfamiliar stretch of the Pilgram’s way. Learn how to pause and listen to the Shepherd’s voice.

1. Both professors were speaking in their personal capacity as legal scholars, not as representatives of their employers.

2. https://www.nbcnews.com/news/us-news/kilmar-abrego-garcia-deported-el-salvador-trump-immigration-what-know-rcna201708

3. https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

4. https://www.cnn.com/2025/04/15/politics/doj-fires-immigration-lawyer-who-argued-abrego-garcia-case-source-says/index.html

5. https://www.dhs.gov/news/2025/04/16/kilmar-abrego-garcia-ms-13-gang-member-history-violence

6. This information was found in the U.S. District Court Judge’s opinion - https://cdn.factcheck.org/UploadedFiles/093114776999-1.pdf

7. https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have

8. https://www.nytimes.com/2025/04/22/us/politics/trump-justice-department-abrego-garcia-el-salvador.html

9. https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

10. Anyone who has watched the news for any amount of time knows this is B.S. If America wants someone home, America usually gets someone home. See https://www.nytimes.com/2025/04/22/us/politics/trump-justice-department-abrego-garcia-el-salvador.html for

11. https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/

12. [* See, e.g., Michelle Stoddart, ‘Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons, ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons, FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).]

13. https://www.nytimes.com/2025/04/17/us/politics/lisa-murkowski-trump.html

14. https://www.solzhenitsyncenter.org/live-not-by-lies