The one branch of government still functioning is under attack
The Supreme Court is preventing lower federal courts from holding the Trump Administration accountable under the rule of law
The American government was intentionally divided into three branches, each with specific powers that would counteract one another, ensuring that no single branch could have complete control over the country. The founders of this country carefully implemented various safeguards that have almost entirely been eroded today. As the Trump Administration plows through the Constitution and federal law, Congress is doing nothing to stop him. Which means that the only branch that is honoring its sworn duty is the judiciary.
But after Trump violated a lower federal court decisions, the United States Supreme Court in a recent ruling basically told the lower courts to get lost. In her dissent in Department of Homeland Security v. D.V.D. Justice Sonia Sotomayor explained that: “This is not the last time this Court closes its eyes to noncompliance [with court orders], nor, I fear, will it be the last.” (emphasis added).
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Why did the Supreme Court reward Trump for violating court orders?
We don’t know.
In the Department of Homeland Security v. D.V.D. order, the Supreme Court gave no explanation for its decision. Zero.
It put a hold on a preliminary injunction from the United States District Court of Massachusetts that implemented restrictions on deportations of migrants to any country that will take them rather than their countries of origin.
As I explain in detail below, it was undisputed that Trump ignored this ruling.
So the majority basically ruled that it was perfectly okay for the Trump Administration to blatantly disobey multiple federal court orders.
And if there is any doubt that the Trump Administration is intentionally disobeying court orders, consider the recent whistleblower letter revealing how DOJ’s Acting Deputy Director for the Office of Immigration Litigation, Erez Reuveni, “almost immediately…became aware of the plans of DOJ leadership to resist court orders that would impede potentially illegal efforts to deport noncitizens” and “the details to execute those plans.”
And yesterday, the Department of Homeland Security (DHS) sued the federal judges of Maryland for requiring the Government to give the court time to consider an individual’s detention before that individual is deported or their legal status is changed. In the first section of the complaint, DHS argues that federal judges have gotten in the way of Trump’s policies and “requir[ed] the Supreme Court to intervene again and again in recent weeks to pause the unlawful restraint of the President’s exercise of core Article II powers.”
It’s almost as if the Administration is not even trying to hide their complete disregard for the rule of law—instead, they are shouting it from the rooftops. Why do they feel so comfortable doing so? Because the Supreme Court is invalidating federal court orders and giving the Trump Administration the green light to keep ignoring them. As Justice Sotomayor wrote, “That use of discretion is as incomprehensible as it is inexcusable.”
What was this case about?
This case is one of the numerous cases challenging the Trump Administration’s unconstitutional deportations. But a crucial fact in this case is that it involves the Trump Administration’s total dismissal of federal court orders on multiple occasions. And the Supreme Court still sided with the Administration over its fellow Article III colleagues—and more importantly, the law.
When Trump took office just shy of seven months ago, the DHS sent an internal directive that ordered “immigration officers to ‘review for removal all cases…on the non-detained docket’ and ‘determine the viability of removal to a third country.’” About a month later, a second directive was sent out. This one said that DHS could remove noncitizens to a country they had no ties to so long as it was given “what DHS believes to be ‘credible’ ‘assurances that aliens removed from the United States will not be persecuted or tortured.’” And, they could do so “without any process.” If the country did not provide DHS with what they believed to be “credible assurances,” then DHS could still remove the individual to that country if the noncitizen was given notice and the noncitizen then stated a fear of being sent there. ICE officers could not inform the person that they had a right to present a fear of torture argument; only if the person did it “unprompted,” could they then be sent for a screening interview.
The result of these practices? One individual was sent to Mexico and then to Guatemala, where he had originally fled out of fear that he would be persecuted because he was gay. After leaving Guatamala, the man went to Mexico but was raped by a group of men who “locked him in a room until his sister paid them a ransom.” He then came to the United States. There, Justice Sotomayor reported, an “Immigration Judge granted withholding of removal to Guatemala,” but never to Mexico because that had never been considered. Just two days later, ICE agents brought him back to Mexico, where the “Mexican authorities promptly” sent him back to Guatemala.
This man was not given notice of his removal to Mexico until he was on the bus. There was no hearing, no order issued, absolutely nothing.
Three other individuals sought relief after they feared being placed in a similar situation. The United States District Court for Massachusetts issued a temporary restraining order (TRO) that prevented the Government from deporting the three individuals and “putative class of all individuals ‘subject to a final order of removal from the United States to a third country’” absent both written notice and a chance to be heard in regards to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (a treaty that the United States is a party to and was later incorporated into an Act passed by Congress).
Two days later, when DHS sent out their second internal directive, four individuals whom the TRO protected were sent to Guantanamo Bay and then to El Salvador—in complete disobedience of the District Court’s TRO. A few weeks later, the District Court clarified the preliminary injunction and just barely prevented 13 people from being sent to Libya, despite being Laotian, Vietnamese, and Filipino. Then, six individuals were set to be deported to South Sudan with zero opportunity to make an argument of fear of torture, despite “the noncitizens ‘yelling at any of the jailers that they were afraid to go to South Sudan.’”
This case was appealed to the United States Court of Appeals for the First Circuit, which declined to pause the lower court’s injunction. As this administration does, it came to the Supreme Court and asked for the injunction to be stayed so they could proceed with third-country removals without providing noncitizens notice.
What did Justice Sotomayor say in her dissent?
Justice Sotomayor began the dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, by emphasizing the fundamental principle that all court orders should be followed when issued. She went on to lay down the law regarding where a noncitizen may be deported to, as one factor that must be considered for a stay is the likelihood that the party asking for the stay (moving party) would win on the merits of the case.
Federal law usually calls for noncitizens to be removed “only to countries with which they have a meaningful connection.” There are “two default options” that Congress noted: (1) when a noncitizen is arrested while coming into America are to be removed to the country they came from, and (2) almost everyone else can choose the country they want to be sent to. If either option is not possible or feasible, then the Government should deport the individual to their country of citizenship or the country they formerly resided in.
There is another provision, often referred to as “third country removals,” that Sotomayor explained “are permissible only after the Government tries each and every alternative noted in the statute, and determines they are all ‘impracticable, inadvisable, or impossible’” (emphasis added).
Moreover, “noncitizens facing removal of any sort are entitled under international and domestic law to raise a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” That treatise specifically forbids sending anyone to a place where there are “‘substantial grounds’” that they could be at risk of being tortured.
Congress reflected the Convention’s policy in the Foreign Affairs Reform and Restructuring Act of 1998 by stating that “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States”
After clarifying the law to show that DHS was in complete violation of it and therefore could not succeed on the merits, Sotomayor moved on to why it is so problematic that the majority paused a stay that would permit the Government to continue violating the law. She explained that stays should only be granted “‘under extraordinary circumstances,’” “especially where two lower courts have already denied such relief.”
Sotomayor put it quite simply:
Here, in violation of an unambiguous TRO, the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard. The Government’s assertion that these deportations could be reconciled with the injunction is wholly without merit. Notice at 5:45 p.m. for a 9:35 a.m. deportation, provided to a detainee without access to an attorney, plainly does not “‘affor[d]’” that noncitizen with “‘a reasonable time’” to seek relief.
The dissent then considered another factor for a stay: the moving party will suffer irreparable harm absent a stay. Not only was the Government facing alleged harm because of its own actions, but it also argued harm based on the lower court’s order to provide relief to the individuals sent to South Sudan. Sotomayor pointed out that the government did not appeal that order, so it was “not properly before this Court,” and that the lower court “adopted the narrowest possible remedy, allowing the Government itself to choose whether it would return the class members…or provide them with process where they are held,” so it was difficult to find any harm.
It’s also worth noting the Government’s “facially absurd contention that the Executive is “‘irreparabl[y]’ harmed any time a court orders it temporarily to refrain from doing something it would like to do.”
What this means is that the Government clearly failed to make a viable argument for a stay under the law—and the Supreme Court still ruled in its favor.
By granting the Government relief for such unlawful conduct, Sotomayor condemned the court for “find[ing] the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled.”
What’s the takeaway?
There are no words better than Sotomayor’s: “each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
The Supreme Court has given the Trump Administration the stamp of approval to continue deporting noncitizens to third-party countries where they have zero ties. But even more frightening is that the Court found no issue with the Government's flagrant defiance of federal court orders.
Follow the facts,
KW
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Thank You, Kim. Every day now there seems to be one more scary incident or policy decision eroding the rule of law.