Lightning Round Friday: Contempt; Birthright Citizenship; and Abrego Garcia

As John Oliver says at the top of each episode of Last Week Tonight, it has been a busy week. So busy, in fact, that for today's essay, I'm going to do a lightning round of observations on three of the major developments in just the last couple of days.

1. Contempt

Let's start with Judge Boasberg's opinion in J.G.G. v. Trump, which "concludes that probable cause exists to find the Government in criminal contempt" for its willful failure to comply with his orders to halt and reverse flights carrying Venezuelans to El Salvador. Contempt sanctions run against individuals, not the government as a whole, however, and so Judge Boasberg is now trying to pry from the government information about who exactly made what decisions.

Will that work? Assuming the proper defendants can be identified--which could require cooperation from the government that may not be forthcoming--there's good news and bad news.

The good news is that in a criminal contempt proceeding, a federal district judge can appoint a private attorney to prosecute. In other words, Judge Boasberg is not dependent on the Justice Department and thus can ensure that there is a robust prosecution.

The bad news is that any criminal contempt would be an "offense[] against the United States" to which the president's pardon power applies. That point was underscored by President Trump's August 2017 pardon of Sheriff Joe Arpaio, who had been convicted of (but not yet sentenced for) criminal contempt. Thus, Trump can insulate any members of his administration who were responsible for defying Judge Boasberg's orders. If Trump himself made the decision, he might not be able to pardon himself, but he doesn't need to because, thanks to the Supreme Court, he is absolutely immune from criminal prosecution for his "core" executive actions and at least presumptively immune for all other official acts.

2. Birthright Citizenship  

Yesterday the Supreme Court scheduled oral argument for May 15, 2025 in three consolidated cases challenging Trump's executive order restricting birthright citizenship. However, the Court did not grant certiorari and did not agree to consider the merits. The Trump administration filed stay applications in each of the three cases (from federal district courts in Maryland, New Jersey, and Washington State), arguing in each that the district court erred by issuing a nationwide injunction. The oral argument next month will thus focus on that issue and not on the constitutionality of the underlying executive order.

As I noted in an essay on this blog what feels like a year ago but was literally just one week ago, there's no long-term political or ideological valence to nationwide injunctions. They favor Democrats when there's a Republican president and Republicans when there's a Democratic president. Nonetheless, in the Supreme Court the issue does appear to divide the Justices ideologically, with the conservatives--especially Justice Gorsuch--skeptical of the propriety of nationwide injunctions. I suspect, therefore, that the Court will limit the power of district courts to issue such injunctions.

I hesitate to draw that conclusion, however, because the Court has thus far not granted the government the stays it asked for in these cases. The district court injunctions remain in place. In other cases in which there was a stay application prior to broader consideration by the Supreme Court, the justices have not been shy about staying a lower court decision in a way that signaled its view on the merits. So perhaps the absence of a stay means that the Court is not inclined to limit nationwide injunctions.

There is another possibility, however. Had the Court stayed any of the injunctions, that would have been falsely portrayed by the Trump administration as a victory on the merits. Indeed, yesterday, Trump himself did more or less that simply in reaction to the Court's decision to hold oral argument. Here's how the NY Times reported on it:

President Trump told reporters on Thursday after hearing of the court’s decision to hold oral argument that he was “so happy.” “The case has been so misunderstood,” he added. “That case, birthright citizenship, is about slavery,” he said without explaining his meaning.

To be fair to Trump, those statements appear to be products of his ignorance rather than a conscious effort at spin. His happiness apparently stems from his false belief that the Court has scheduled oral argument on the merits. As for his further statement, the Times reporter need not have added that Trump failed to explain his meaning because the meaning is more or less self-evident. "The case" is Trump's awkward way of referring to the citizenship clause of Section One of the Fourteenth Amendment. He thinks it merely conferred citizenship on formerly enslaved persons, not on the children of undocumented immigrants or other non-citizens temporarily in the United States. He's wrong about that, but it's clear enough what he means.

Should the Court ultimately reverse the district court injunctions based on a view about the limits of district court authority, at that point we can expect people in the Trump administration with a greater understanding of the legal system than Trump himself to deliberately and falsely describe such a decision as vindication on the merits. We can also expect some major news outlets and certainly individuals on social media to misdescribe the ruling as on the merits. Thus, the stakes of this case are high. The Court could limit the power of federal district courts and foster the false impression that Trump's assault on birthright citizenship has merit.

3. Abrego Garcia

The good news is that Kilmar Armando Abrego Garcia is alive and seemingly unharmed, having met yesterday with Maryland Senator Chris Van Hollen outside of prison in El Salvador. The bad news is that Abrego Garcia was thereafter taken back to prison, and El Salvador President Nayib Bukele has no plans to release him to the United States.

Meanwhile, and also yesterday, the U.S. Court of Appeals for the Fourth Circuit rejected the Trump DOJ's request for an emergency stay of the latest district court order seeking to implement its previous requirement--affirmed by the Supreme Court subject to clarification that came thereafter--to facilitate Abrego Garcia's return. The unanimous panel opinion was authored by Judge J. Harvie Wilkinson III, a conservative appointed by Ronald Reagan. It is blistering. It's also short and worth reading in full. Here is the language I found most arresting:

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 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.

I expect the Trump DOJ now to seek a stay from the U.S. Supreme Court rather than comply. I have some hope that the Supreme Court will not oblige. Judge Wilkinson's opinion reads in some ways like a love letter to Chief Justice Roberts (decrying attacks on judicial independence) and Justice Gorsuch (sounding libertarian themes about the dangers of unchecked government power).

But we shall see. Trump wants this confrontation because he's counting on the American public accepting the framing of the controversy as one of liberal judges using technicalities to frustrate his effort to bring justice to undocumented immigrant criminals. And given the shocking number of Americans who support Trump's inhumane immigration policies, there is reason to fear that he's right. That's no reason not to resist the administration with respect to Abrego Garcia and others, but it is a reason to think that the administration will continue its intransigence, perhaps even after a definitive rebuke from the Supreme Court.

--Michael C. Dorf