Mass Hearings and Due Process by Zoom: A Modest Judicial Proposal

 Court orders demanding Trump reverse a deportation highlight escalating judicial interference in immigration and foreign policy, raising questions about constitutional overreach.

The tsunami of court orders that has been washing over the Trump administration—he “can’t do this,” he “must do that”—has me wondering where it all will end. Will the multifarious injunctions, restraining orders, and appeals finally paralyze Trump’s agenda? An agenda, I hasten to point out, on which he was elected, so, given the strength of his victory, it is also the American people’s agenda.

I don’t know. The attacks have been extraordinary not only in number but also in depth. The president and his lieutenants have, in effect, been told that they cannot hire and fire whom they wish or enter into or terminate what contracts they wish; in some cases, they are even forbidden to know what payments have been made by the agencies they nominally direct. Law enforcement and foreign policy are, or at least used to be, executive branch responsibilities. But the courts have gone to extraordinary lengths to insinuate themselves into those processes.

On April 4, Paula Xinis, a Maryland district court judge appointed by Barack Obama, ordered that the Trump administration must “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.”

As all the world knows, Garcia, an illegal alien, had been sent to enjoy the hospitality of El Salvador in March. It turns out that his deportation to El Salvador had been a mistake, an “administrative error.” This was not because he did not deserve to be deported. He most certainly did. However, he had previously been granted “withholding of removal” status by a judge in 2019 because, though El Salvador was his native land, he said he was threatened by gang members of MS-13 there. That meant that while Garcia could be deported, he could not be deported to El Salvador.

There are several ironies in the case. One is that MS-13, once a scourge of El Salvador, has been effectively neutered there by Nayib Bukele, the president. Indeed, Bukele has transformed El Salvador from “the murder capital of the world” into one of the safest countries in the Western Hemisphere.

A further irony was that Garcia is widely reputed to be a member of MS-13. He now disputes the charge, though it was credible enough that US immigration officials were just about to rescind his special status when the controversy over his deportation broke. The gravamen of the controversy turned on the question of “due process.” Had Garcia had his fair share? Some say yes, some say no. I place myself among the former, but it is clear that the question of what sort of process is due to someone who came to this country illegally is a fraught one.

More than 11 million people crossed into this country under Joe Biden’s watch. Will each individual require his own legal process before being eligible for deportation? Going through the motions of that process would take decades, if not, as some have argued, centuries.

To forestall that unhelpful eventuality, I would like to suggest an expedient to the various courts. I got the idea from the mass weddings presided over by Reverend Sun Myung Moon of the Unification Church. The enterprising and entrepreneurial clergyman would preside over 5,000, 10,000, or even 20,000 happy couples at a time. Thus, large batches of new church members would be minted in a single go.

Could not the American judiciary take a page from the book of Reverend Moon and conduct, not mass weddings, but mass hearings to confer the golden halo of due process upon thousands of potential deportees at a time? Especially after our experience with COVID, when just about every human action was virtual or by proxy, why can we not hold hearings by proxy to determine the immigration and deportation status of likely candidates? Even at 20,000 per session, it would be a tedious process, but how much more efficient than taking each miscreant individually? I offer the idea free and for nothing as my contribution to salvaging the reputation of the judiciary, recently so tainted by its inveterate anti-Trump bias.

I have one other idea I’d like to offer for reform. There has been a flurry of additional opinions, orders, and such like in the aftermath of Judge Xinis’s demand that the government take steps to “facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States.” Even the Supreme Court has weighed in on the issue. The due date on Judge Xinis’s original demand has come and gone. Garcia is still in El Salvador, apparently enjoying drinks with U.S. senators worried about his spirits and safety.

According to my dictionary, “facilitate” means to make it easier to bring something about. “Effectuate” means actually to make something happen. Judge Xinis was reticent to the point of obscurity when it came to the details of fulfilling this ambition. J. Harvie Wilkinson III, Chief Judge of the United States Court of Appeals for the Fourth Circuit, weighed in with a little reading lesson about the word “facilitate.” It is, the judge tells us, “an active verb. It requires that steps be taken, as the Supreme Court has made perfectly clear.” Not only that, he explained, the decision by the Court “does not . . . allow the government to do essentially nothing.”

What then should the government do? Judge Wilkinson offers a little throat clearing, specifying a few things that “facilitation” does not mean or entail. But he does not, I think, go far enough. I suggest that President Trump come right out and ask him, man to man: How would Judge Wilkinson have Trump conduct his foreign policy? What should he do as president? Trump should invite Wilkinson, and Chief Justice John Roberts if need be, to the Oval Office. Perhaps the judge and justice could sit in on Trump’s call to Nayib Bukele, asking that he release Garcia. Perhaps they could place the call themselves.

And what if Bukele refuses? Judge Xinis ordered that Trump not only facilitate but also effectuate—that is, actually bring about—Garcia’s release. Perhaps Trump should threaten to invade El Salvador. Perhaps he should ask the judges to place the call and issue the order to be sure our foreign policy was conducted in a manner pleasing to them.

If that seems like untoward—not to say unconstitutional—interference of the third, “least dangerous” branch of government into the affairs of the second, executive branch, don’t kid yourself: it is. But the nagging question is whether the recent, high-minded expostulations and orders flowing out of these various courts and the mouths of these preening jurists have been any less egregious. The jury is still out on that question.

https://amgreatness.com/2025/04/20/mass-hearings-and-due-process-by-zoom-a-modest-judicial-proposal/