More than three decades ago, Professor Bruce Ackerman set out his theory of the United States as a dualist democracy in the first volume of We the People. Much of the time, Ackerman explained, our political leaders engage in “ordinary lawmaking” that is constrained by the Constitution. In extraordinary times, however, the nation—not just its leaders, but the public as well—engages in “higher lawmaking” when the principles by which we govern ourselves are transformed.
The first volume of We the People identified three higher lawmaking moments: the late 1780s, when the Constitution was adopted; the late 1860s, when the Civil War Amendments were added to the Constitution; and the mid 1930s, when President Franklin Roosevelt’s New Deal was endorsed by the Supreme Court after a protracted political battle. The Civil War Amendments abolished slavery, established the supremacy of the federal government over the states, and sought to guarantee equality among all citizens. The New Deal legitimated an even broader role for the federal government in the nation’s economy through regulation and social insurance programs.
While Donald Trump may have been reelected as President because of citizens’ frustration with ordinary lawmaking—e.g. concerns about inflation and immigration—he now is governing in a way that seeks to transform our constitutional order. Quite simply, Trump has invoked the president’s powers under Article II more expansively than any other president in our history to fundamentally restructure the federal government. His proposed transformation would, among other things, dramatically reduce the federal government’s presence in many aspects of people’s lives, transform our economic and military relations with other nations, and devote substantial resources to zealously enforcing immigration laws. Significantly, Trump has implemented these changes without new legislation from Congress.
As a result, the Trump administration has had many of its actions challenged in court. The ongoing litigation over the deportation of Kilmar Abrego Garcia is just one such case. In a unanimous opinion written by Judge Harvey Wilkinson, the United States Court of Appeals for the Fourth Circuit recently denied the Trump administration’s request to stay a district court’s order requiring the administration to “take all available steps” to facilitate Garcia’s return to the United States “as soon as possible” and to show that it has acted accordingly.
In the parlance of Professor Ackerman, Judge Wilkinson’s seven-page opinion was dualist. Its reasoning and rhetoric were both ordinary and extraordinary. This article will explore the latter aspects of Wilkinson’s opinion, which may be the most revealing judicial statement of the potentially constitutionally transformative moment in which we now live.
Litigation Prior to the Fourth Circuit’s Opinion
Before discussing the opinion, it is necessary to understand the prior litigation leading up to last week’s order. Garcia, a Salvadoran native living in Maryland, “was detained and quickly flown to El Salvador [in March] despite a 2019 court order that barred the government from deporting him there because of the risk that he could be targeted by a local gang,” according to Politico. The Trump administration contended that Garcia was a migrant gang member and therefore subject to removal from the United States.
Subsequently, a federal government official acknowledged that Garcia’s deportation resulted from an “administrative error.” A lawsuit was brought on Garcia’s behalf in federal district court in Maryland, which resulted in a rapid appeal to the Supreme Court. As Politico noted, the “Supreme Court said [Garcia’s] deportation was ‘illegal in a decision upholding [the federal district court judge’s] directive requiring the U.S. to facilitate his release.”
Judge Wilkinson’s opinion last week followed litigation in the district court over whether the administration had taken any action to bring Garcia back. In some respects, Wilkinson’s opinion can be viewed as an ordinary judicial decision. The Fourth Circuit denied the government’s motion for a stay, made it clear that the appeals court was following the Supreme Court’s prior decision in the case, and included an interpretation of the term “facilitate.”
The court rejected “the government’s argument that all it must do is ‘remove any domestic barriers to [Abrego Garcia’s] return’” because, Wilkinson wrote, “the Supreme Court command[ed] that the government facilitate Abrego Garcia’s release from custody in El Salvador.” (The emphasis supplied by the italics was the judge’s.)
Abrego Garcia v. Noem as an Extraordinary Judicial Decision
Having ruled on the government’s motion and provided the court’s reasoning, Wilkinson could have ended his opinion there. But he didn’t. Instead, Wilkinson went on to address the separation of powers issues at the heart of the case. This discussion was remarkable because it discussed both law and politics—exactly the sort of rhetoric that occurs in times of higher lawmaking.
Courts have been here before in confronting a more powerful political branch of government. Constitutional law begins with Marbury v. Madison, in which John Marshall explained judicial review—which authorizes the Supreme Court to invalidate unconstitutional legislation—while declining to exercise it in the case before the Court.
The Supreme Court has relied on Marbury many times, perhaps most notably in Cooper v. Aaron. In that 1958 decision, the Court held that Arkansas officials resisting school desegregation must comply with federal district court orders based upon Brown v. Board of Education.
In Marbury and Cooper, the Supreme Court had to grapple with the prospect that the political branches—President Thomas Jefferson in Marbury, the Arkansas governor, legislature, and public school officials in Cooper—would ignore the Court’s ruling. What would the court do then? Wouldn’t judicial review then be no more than courts, Wizard of Oz-like, imploring political officials to pay no attention to that robed man behind the curtain?
The Power to Persuade
Wilkinson’s approach to this challenge combined empathy, civics, and consequentialism, employing all these rhetorical strategies to persuade the government to follow the court’s orders. He began by acknowledging the government’s “frustrat[ion]” and “displeas[ure]” with the court’s rulings. This sensitivity for the government’s position may carry weight with both the administration and the public, as it was articulated by one of the nation’s most able federal judges, a conservative appointed by President Ronald Reagan in 1983.
Wilkinson’s empathy was merely a prelude to his civics lesson, directed at both the federal government and the public. He offered a variation of the separation of powers stories we learn in high school and reiterate in law school. On the one hand, Wilkinson wrote, we have the executive branch, energetic and impatient to implement its policies after electoral victory. On the other hand, we have the judiciary, cautious and always concerned with law and procedure—or “means” in Wilkinson’s terminology.
Different institutional objectives and priorities may produce conflict. Nevertheless, Wilkinson wrote, “mutual respect” is imperative for the success of both branches. However, “[t]oo often today,” he wrote, “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.”
To illustrate an alternative approach to inter-branch relations, Wilkinson recounted the history of President Dwight Eisenhower’s acting to enforce the Supreme Court’s desegregation decree in Brown, which required him to set his “‘personal opinions’ aside.” As Wilkison noted, failure to do so by Eisenhower would have resulted in “anarchy.”
Wilkinson concluded in a similar vein, indicating that the stakes for both branches of government couldn’t be higher:
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 d[i]nt 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.
Wilkinson recognized that, politically, the executive branch could prevail in the short term. Nevertheless, he was confident that law would prevail in the end. In that spirit, he implored the government to see the case not as its next step in escalating a constitutional crisis but instead as an opportunity to vindicate the value of the rule of law. It is unusual, to say the least, for a federal judge to include this discussion in a judicial opinion.
Wilkinson’s opinion is just one sign that, as a matter of constitutional law and politics, we are living in an extraordinary time. His candor regarding the issues raised by Abrego Garcia shows that the structure of our government is at stake in the many cases in which the Trump administration has been sued. Ackerman’s theory of our dualist government reminds us that whether Trump’s effort at higher lawmaking succeeds depends, ultimately, on how all of us respond to the current clash between the executive branch and the judiciary.
