Wednesday Morning Briefing

Recalling an antecedent to the case of "Maryland Man"

So the nation is transfixed—or at least Democrats and the news media—by the case of Kilmar Abrego Garcia, the “Maryland Man” who has suddenly topped “Minnesota Man” as the object of media obfuscation. He is the Salvadoran national the Trump Administration deported to El Salvador along with a bunch of Venezuelan gang member who curiously the left isn’t even trying to defend, even as the Biden Administration didn’t life a finger against any of this gang. It’s almost as though the left and the media are using Garcia to distract from the fact that Trump did something that a large majority of American approve. Admitting gang members at the border? Who, us????

There are a lot of tangled arguments about Garcia’s legal status, and the Trump Administration’s handling of his deportation. Yet I recall a 1953 Supreme Court case, Shaughnessy v. US ex rel. Mezui (345 U.S. 206), which Walter Berns described in his fabulous first book, Freedom, Virtue, and the First Amendment:

An alien resident of the United States for twenty-five years journeyed to Hungary to see his dying mother, leaving his wife in their home in Buffalo. After considerable difficulty he obtained a visa from the American Consul in Hungary and returned to the United States. He was refused permission to land for “security reasons.” The Attorney General refused to inform him of the evidence against him. England, France, and twelve South American countries refused to admit him; he could neither re-enter the United States nor go to any other country. He sought parole from Ellis Island by praying for a writ of habeas corpus. This was granted, but the government appealed to the Supreme Court, in a five-four decision, upheld the government. The man without a country returned to Ellis Island, perhaps for the rest of his like, without being told why he was a security risk. [Emphasis in original.]

Here’s an excerpt from the syllabus of the case:

An alien resident of the United States traveled abroad and remained in Hungary for 19 months. On his return to this country, the Attorney General, acting pursuant to 22 U.S.C. § 223 and regulations thereunder, ordered him permanently excluded without a hearing. The order was based on "information of a confidential nature, the disclosure of which would be prejudicial to the public interest," and on a finding that the alien's entry would be prejudicial to the public interest for security reasons. Because other nations refused to accept him, his exclusion at Ellis Island was continued for 21 months. A federal district court in habeas corpus proceedings then directed his conditional parole into the United States on bond.

Held: the Attorney General's continued exclusion of the alien without a hearing does not amount to an unlawful detention, and courts may not temporarily admit him to the United States pending arrangements for his departure abroad.

(a) In exclusion cases, the courts cannot retry the Attorney General's statutory determination that an alien's entry would be prejudicial to the public interest.

(b) Neither an alien's harborage on Ellis Island nor his prior residence in this country transforms the administrative proceeding against him into something other than an exclusion proceeding, and he may be excluded if unqualified for admission under existing immigration laws. [Emphasis added.]

It’s not an identical case, but similar enough for judicial work. It seems to me the “risk” involved in the present case of “Maryland Man” MS-13 member Kilmar Abrego Garcia is at least as good as a Hungarian who had been living with a spouse for 25 years in Buffalo, though I suppose 25 Buffalo winters may be the equivalent of a Salvadoran prison. And let’s not forget that by the time of this 1953 decision, the Supreme Court was a completely New Deal Court, with all nine justices appointed by a Democratic president.

Meanwhile, today’s memes to get you to lunch: