DOJ appeal in Garcia v Noem was rejected 3-0 by the 4th circuit. Reagan appointed judge wrote the decision, didn’t care for DOJ:
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.
Does the judge think that the DOJ is fulfilling its responsibilities? Doesn’t sound like it.
The Supreme Court’s decision does not, however, allow the government to do
essentially nothing.
And is in general displeased with the behavior of the Executive branch:
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
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.
* 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).