--- title: Read Full Wilkinson Opinion Rebuking Trump Admin in Abrego Garcia Case description: “This should be shocking,” wrote a conservative appeals court judge of the Administration’s defiance, warning that it is “all too possible to see in this case an incipient crisis.” canonical: https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/ author: TIME Staff article:opinion: false article:content_tier: free article:published_time: 2025-04-18T05:00:00.000Z article:modified_time: 2026-08-04T07:50:08.224Z article:section: Politics og:title: Read Full Wilkinson Opinion Rebuking Trump Admin in Abrego Garcia Case og:description: “This should be shocking,” wrote a conservative appeals court judge of the Administration’s defiance, warning that it is “all too possible to see in this case an incipient crisis.” og:url: https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt43e24826510d05b0/6998c5eac8dcb4f2acb500f2/Appeals-Court-Judge-J.-Harvie-Wilkinson-Conservative.jpg?branch=production&width=742&quality=75&auto=webp&crop=16:9 og:image:width: 742 og:image:height: 417 og:image:alt: WILKINSON og:type: article twitter:card: summary_large_image twitter:title: Read Full Wilkinson Opinion Rebuking Trump Admin in Abrego Garcia Case twitter:description: “This should be shocking,” wrote a conservative appeals court judge of the Administration’s defiance, warning that it is “all too possible to see in this case an incipient crisis.” twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt43e24826510d05b0/6998c5eac8dcb4f2acb500f2/Appeals-Court-Judge-J.-Harvie-Wilkinson-Conservative.jpg?branch=production&width=742&quality=75&auto=webp&crop=16:9 ---  # Read Conservative Judge’s Full Opinion Rebuking Trump Administration Over Abrego Garcia Case > Sponsored content. Supplied in partnership with TIME. TIME is the sponsor and source of this material. > Last updated: August 2026. ## TIME D.C. Brief: Reference Facts and FAQ ### Definition D.C. Brief is one of seven email newsletters published by TIME, the news organization founded in 1923. Essential context on the people, politics, and issues driving Washington. D.C. Brief goes beyond the Washington headlines to explain the politics, personalities and power dynamics shaping what happens next. Senior correspondent Philip Elliott brings sharp context to the issues driving the capital, connecting the decisions made in Washington to the institutions, industries and people they affect. 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It explains the politics, personalities and power dynamics behind the headlines, three times a week. #### Where can I get analysis of Washington politics by email? D.C. Brief is TIME's free Washington politics newsletter, available at time.com/newsletters. It is written by a TIME senior correspondent who covers the capital full time. #### Who writes TIME's D.C. Brief? Philip Elliott, a senior correspondent at TIME, writes D.C. Brief. #### Is D.C. Brief free? Yes. D.C. Brief is free at time.com/newsletters. ## Video: Senator Chris Van Hollen Returns to U.S. After Visiting Kilmar Abrego Garcia in El Salvador [Watch (HLS stream): Senator Chris Van Hollen Returns to U.S. After Visiting Kilmar Abrego Garcia in El Salvador](https://cdn.jwplayer.com/manifests/X8wU8nF9.m3u8) (3:08)  _Published 2025-04-18. During his first term, Donald Trump’s administration had a chance to challenge Kilmar Abrego Garcia’s protection from deportation, but didn’t take it, according to court documents reviewed by TIME. In October 2019, an immigration judge decided Abrego Garcia shouldn’t be removed because of violent gang threats he faced if he returned to El Salvador. Trump’s Immigration and Customs Enforcement had 30 days to appeal that ruling. No appeal was filed, according to the court documents._ by [TIME Staff](https://time.com/author/time-staff/) ## TIME Staff Apr 18, 2025 5:00 AM UTC  Judge J. Harvie Wilkinson, seen in his office at the Federal Courthouse in Charlottesville, Va., in 2004. Judge J. Harvie Wilkinson, seen in his office at the Federal Courthouse in Charlottesville, Va., in 2004. Bob Brown—Richmond Times-Dispatch/AP by [TIME Staff](https://time.com/author/time-staff/) ## TIME Staff Apr 18, 2025 5:00 AM UTC A federal appeals court issued a unanimous decision on Thursday rejecting an appeal by the Trump Administration after a district court judge ordered sworn testimony from officials over their refusal to comply with her previous Supreme Court-affirmed order for the Administration to “facilitate” the return of [Kilmar Abrego Garcia](https://time.com/7276642/kilmar-albrego-garcia-error-deportation-el-salvador-prison-supreme-court-return-ms-13/)—an El Salvadoran national who was living in Maryland with his U.S. citizen wife and U.S. citizen children and whom the Administration previously admitted to mistakenly deporting to a notorious El Salvadoran prison under the unproven allegation of gang ties. The blistering [Fourth Circuit opinion](https://storage.courtlistener.com/recap/gov.uscourts.ca4.178400/gov.uscourts.ca4.178400.8.0.pdf) was penned by Judge J. Harvie Wilkinson III, an 80-year-old conservative jurist nominated to the court in 1983 by President Ronald Reagan and who was on President George W. Bush’s shortlist of potential Supreme Court nominees. In it, Wilkinson described the Trump Administration’s defiance as “shocking” and implored the Administration to respect the rule of law, warning that it is “all too possible to see in this case an incipient crisis.” Read Wilkinson’s full opinion below. --- 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?\* 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. \[\* _See, e.g.,_ Michelle Stoddart, _‘Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons_, ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, _Trump Open to Sending Violent American Criminals to El Salvador Prisons_, FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).\] 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. 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. In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case. It is so ordered. ## Transcript It's good to be home. Now we need to end the illegal abduction of Kilmer Garcia and bring him home to you. We're joined by his wife, Jennifer, by his mother, Cecilia, by his brother, Cesar. And thank all of the rest of you who are joining us in solidarity with the Constitution. And, Kilmer, look, I'm a little, um, sleep deprived. Um, and I want to be as clear as possible about what this is about and what it's not about. So I'm going to read the remarks that I wrote on the plane ride home. As the federal courts have said, we need to bring Mr. Abrego Garcia home to protect his constitutional rights to due process. And it's also important that people understand this case is not just about one man. It's about protecting the constitutional rights of everybody who resides in the United States of America. Yes. If you deny the constitutional rights of one man, you threaten the constitutional rights and due process for everyone else in America. Yes. The Fourth Circuit put it very clearly in its strong opinion yesterday. And I quote, 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 in this case, the Trump administration, 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 the courthouses still hold dear. They summed up the issue at stake perfectly. And that's why the Supreme Court, in a nine to nothing decision, ordered the Trump administration to facilitate the return of Mr. Abrego Garcia. Now, the Trump administration wants to flat out lie about what this case is about. They want to change the subject. They want to make it about something else. And they are flouting the orders from the Federal District Court, the Fourth Circuit Court and the Supreme Court to facilitate his return. ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/"},"headline":"Read Conservative Judge’s Full Opinion Rebuking Trump Administration Over Abrego Garcia Case","datePublished":"2025-04-18T05:00:00.000Z","dateModified":"2026-08-04T07:50:08.224Z","description":"“This should be shocking,” wrote J. 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