Kim Wehle Why did the Supreme Court reward Trump for violating court orders?

 

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

Kim Wehle Jun 26

 

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).

 

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

Un-Byrdened: The Senate Parliamentarian Has Reset The Game

 

Un-Byrdened: The Senate Parliamentarian Has Reset The Game

Rulings by Elizabeth MacDonough take big bites out of the GOP’s “Big Beautiful Bill”

The Big Picture and Jay Kuo Jun 24

 

The arcane world of parliamentary rules and procedures is not normally riveting drama. Few outside Congress know what a legislative “Byrd bath” is, and fewer still likely know the name Elizabeth MacDonough, the current Senate Parliamentarian.

Yet behind the scenes this weekend and into Monday in the Senate, MacDonough heard arguments from partisans and issued several key rulings, deciding what can stay in and what must come out of Trump’s “Big Beautiful Bill” under rules governing the so-called “reconciliation” process.

You may have heard about some of the worst things the GOP poured into the bill. Huge cuts to SNAP benefits. A provision aimed at kneecapping judicial review. Gutting of federal agencies and attacks upon the rights of federal workers. Restrictions on AI regulation by the states. Even the selling off of millions of acres of pristine federal land for development.

How did all these fare after MacDonough and her office reviewed them? What came out of the bill, stayed in it, or only survived after significant modification?

The process is ongoing, but we have some early answers. Before we jump into the specifics of this odious bill, let’s have a quick review of “reconciliation,” how it’s different than “normal” legislation under something called the “Byrd” Rule, and what part the Senate Parliamentarian plays. Then we’ll get to the juicy parts, which I’m happy to report have given Democrats many reasons to cheer.

Reconciliation, the Byrd Bath and the Parliamentarian

That header may sound like a C.S. Lewis novel, but the mechanics of what the Senate is currently doing matter a great deal to the entire nation. So it’s worth breaking these down and getting a firmer grasp of each.

When typical bills originate in the House and go to the Senate for approval, they are subject to the filibuster rule. That means that any senator can keep debate from ending by lodging a filibuster. To break a filibuster, you need a three-fifths vote, or 60 senators to agree. In a closely divided Senate, that makes it very hard to get most legislation through. There has to be pretty solid bipartisan support.

But the filibuster doesn’t apply to all types of bills. The most important exception is a “reconciliation” bill. The name comes from the process where Congress “reconciles” federal laws on taxes and spending with the targets set by the annual budget. It’s basically a way to make the budget match the law.

One of the primary jobs of Congress (though you wouldn’t know it from the past few years under GOP control) is to pass a budget and then appropriate funds. This process is difficult enough, but it would probably flounder entirely if the filibuster rules applied to reconciliation bills, too.

Because reconciliation is a key exception to the filibuster rule, you can imagine what the temptation is: loading everything you can into it and calling it a “reconciliation” bill. That’s what the GOP did with the budget bill. It’s loaded down with all kinds of things that would normally be subject to the filibuster were they in a stand-alone bill.

Enter the Byrd Rule. It’s named after the late Sen. Robert Byrd of West Virginia and it’s been in place for 40 years. The Byrd Rule says that extraneous matters can’t get shoved into a reconciliation bill.

What’s extraneous? There’s a laundry list that keeps out any provisions that budget beyond 10 years, are outside of a committee’s jurisdiction, are outside the budget instructions, or make changes to social security. But the big sticking point is this: it excludes anything that doesn’t change federal spending or revenue and excludes it where the budgetary effect is merely “incidental” to the actual policy goal.

It’s that last point that is the real stickler. How do you decide whether something is actually “incidental” to the budget in its effect? And who gets to decide that?

Enter the Senate Parliamentarian. Think of her as a legislative referee. Her role is non-partisan, and she’s a crucial gatekeeper to keeping the Senate on the straight and narrow. Her job is to help ensure there are no B.S. provisions labeled as “budgetary” that are actually sneaky policy directives.

Before the Senate gets to vote on the reconciliation, both sides make their case to the Parliamentarian, and she makes her rulings, washing out things that don’t meet the criteria. And that’s why it’s called a Byrd bath!

One day you’re in, the next you’re out

For weeks, I have fielded panicked messages from readers about truly bad provisions in the bill. In response, I have cautioned patience and to trust the process, hard as that can be these days.

While it’s true that the GOP majority could vote to overturn the Senate Parliamentarian on her specific rulings, this would open a very big door that can’t easily be closed, if and when the Democrats retake control of government.

Let’s take a broader view to understand the GOP’s reluctance to take this drastic step. Republicans’ primary objectives are centered around passing tax cuts for their wealthy donor class while cutting government subsidies and support for the working class and the poor. Most of this can be accomplished under the current reconciliation rules, including the Byrd Rule.

 

Democrats, by contrast, are stymied in many of their key bills that would secure voting rights, eliminate gerrymandering, and add two new states to the union. When they are back in power, they could use this precedent to simply tack these measures onto reconciliation bills and then overrule the Senate Parliamentarian when she rejects them. That could enshrine Democratic majorities for a generation.

Majority Leader John Thune (R-SD) is reluctant to open that door so widely, at least within the reconciliation process. And he has indicated that he will respect MacDonough’s decisions. “We’re not going there,” Thune said when asked by reporters about possibly overruling her.

 

I would be very surprised if he changed his mind, particularly with any of the provisions MacDonough has so far disallowed. In my view, they’re just not big enough for him to risk upsetting the whole apple cart.

Still, for the GOP, some of the rulings that came out over the weekend and into today have got to sting. Let’s take a look at some biggies.

Kneecapping the judiciary

When the Trump White House began losing its cases before federal district court judges and was being enjoined nationwide wherever it turned, Sen. Chuck Grassley (R-IA) had an idea: what if the law required parties suing over executive orders to post a bond to cover the government’s potential costs and damages from an injunction if they later lost on appeal?

 

Grassley made clear his objective when he first announced the proposal. “Individual district judges—who don’t even have authority over any of the other 92 district courts—are single-handedly vetoing policies the American people elected President Trump to implement,” he declared.

 

That might have made for good headlines and praise from MAGA, but it didn’t set him up well for consideration by MacDonough. In fact, she washed the whole thing clean out of the bill in the Byrd Bath. After all, how does this have anything but an incidental effect on the budget, while its non-budgetary policy objectives were crystal clear, thanks to Grassley?

The provision is gone.

Starving the poor

Another big win for Democrats came when a key provision of the bill, which would have “saved” the federal government $128 billion in food assistance subsidies, got drowned in the Byrd Bath, too.

 

The House version of the bill had attempted to shift SNAP-related costs over to the states. Because many states cannot provide these benefits on their own, this would have resulted in loss of food assistance coverage for millions of poorer Americans. MacDonough ruled that the impact on the budget was incidental to the true policy objectives.

With a $100 billion hole blown in their plans, the GOP is now scrambling to find a way to close the gap created by its $4.5 trillion in tax cuts and its new defense and other spending.

Maybe give up on some of those cuts and expenditures? Just a thought.

REINS on our agency

This one comes off as wonky, but it’s important.

Sen. Mike Lee (R-UT), one of the worst members of the Senate, had inserted a proposal known commonly as the “REINS Act” across state legislatures that have enacted it. It ought to expand congressional control over federal policy by subjecting any future proposed agency actions to congressional approval before they could take effect.

This would have essentially ground all new regulation to a standstill, and unsurprisingly, the Parliamentarian threw it out on Sunday.

 

Exactly what this proposal has ever had to do with the budget, which wasn’t wholly incidental to its primary anti-agency policy objectives, has never been clear.

Auctioning off our federal lands

One of the worst ideas contained in the bill came from Senator Lee. His proposal would have subjected millions of acres of federally protected lands to commercial sale. The idea received widespread condemnation but had gained traction among the anti-environment, “drill, baby, drill” wing of the Republican Party.

MacDonough swooped in late last night with a ruling axing this provision from the bill. Lee may try to reword the language, but word from congressional observers is that Republican senators from Montana and Idaho oppose the land sale as well, meaning it would likely get voted out if Lee ever managed to get it past MacDonough.

Attacking immigrants

The bill had included some highly troubling language that expanded state-level enforcement powers on immigration and limited immigrants’ access to public benefits, on top of efforts discussed above to restrict judicial review of federal immigration policy.

As Migrant Insider reported, the bill’s controversial immigration-related provisions would have

·         allowed states to conduct border security and immigration enforcement;

·         blocked certain grant funding to “sanctuary jurisdictions”;

·         created a fund allowing local officials to arrest individuals suspected of being in the U.S. unlawfully; and

·         barred most non-citizens from receiving SNAP benefits.

 

MacDonough ruled that none of these met the Byrd Rule requirements because they were all policy first, budget afterthought. Nice try, though.

Exploiting our natural resources

In addition to nixing the land sale of millions of acres of federal property, the GOP loaded down the bill with provisions that read like a fossil fuel industry wish list. Here are some provisions they ran up the flagpole but MacDonough refused to salute:

·         Deeming offshore oil and gas projects as “automatically compliant” with the National Environmental Policy Act in order to nullify environmental review processes;

·         Requiring offshore oil and gas leases to be issued to successful bidders within 90 days after the lease sale;

·         Removing the Interior Secretary’s discretion to reduce fees for solar and wind projects on BLM land;

·         Requiring the Interior Secretary to hold yearly geothermal lease sales; and

·         Creating a pay-to-play system for natural gas exports by allowing exporters to simply pay a fee to have their projects be deemed “in the public interest,” a requirement for project approval.

Coming for our federal workers

Several of the bill’s provisions took direct aim at our federal workforce and the protections that federal workers currently enjoy.

The big one would have allowed the executive branch to reorganize federal government agencies, including consolidating or eliminating whole agencies immediately and without Congressional oversight. Attorney General Pam Bondi is trying to do this very thing presently by gutting the Bureau of Alcohol, Tobacco, Firearms and Explosives. Following MacDonough’s ruling, Bondi may now have to go through a normal congressional process to get approval.

Here are some other provisions relating to our federal workforce that MacDonough just washed out of the bill:

·         Increasing the Federal Employees Retirement System contribution rate for new civil servants that would have reduced take-home pay if they did not agree to become “at-will” employees;

·         Adding a $350 fee for federal employees just to file a case with the Merit Systems Protection Board, which adjudicates appeals brought by federal civil servants;

·         Granting authority for agencies to unilaterally rescind funds through “incentive programs” that allow federal employees to identify “unnecessary expenditures”;

·         Mandating the sale of all the USPS’s electric vehicles and supporting infrastructure; and

·         Prohibiting agencies from implementing, administering or enforcing any rules with budgetary effects unless explicitly required by statute.

Killing off the CFPB

A top priority for Senate Republicans has been to gut the agency that Sen. Elizabeth Warren (D-MA) had once worked so hard to establish—the Consumer Financial Protection Bureau (CFPB). That agency is tasked with protecting Americans from rampant financial fraud, which is one reason why Republicans and their big bank backers hate it so much.

The bill going into the Byrd Bath contained a zeroing-out provision that would have stripped away $6.4 billion in funding for the CFPB. MacDonough advised against the provision, however, sending its supporters scrambling to find a way that their defunding can still pass muster.

Warren was jubilant at the news. “Democrats fought back, and we will keep fighting back against this ugly bill,” said Warren, who is the top Democrat on the Senate Banking Committee. She added that the GOP proposals “are a reckless, dangerous attack on consumers and would lead to more Americans being tricked and trapped by giant financial institutions and put the stability of our entire financial system at risk–all to hand out tax breaks to billionaires.”

State regulation of AI

There was one provision that snuck past: a limitation for 10 years on states’ ability to regulate artificial intelligence.

 

That it survived the Byrd Bath caught me off guard at first. But before we all get too worked up about this one negative outcome, there are two important considerations.

First, at the urging of Sen. Ted Cruz (R-TX), who chairs the Senate Committee on Commerce, Science and Transportation, the AI regulation provision was significantly reworked precisely so it didn’t become one more of MacDonough’s Byrd droppings.

Under Cruz’s revised provision, states would be prohibited from regulating AI, but only if they want access to federal funding from the Broadband Equity, Access and Deployment program. Compare that to the House version of the bill, which mandated a 10-year, across-the-board moratorium on state laws regulating AI models and systems and was not tied in any way to funding.

 

Second, this is likely only a temporary victory for the provision’s backers. Three GOP senators, Sens. Josh Hawley (R-MO), Marsha Blackburn (R-TN) and Ron Johnson (R-WI), have already signaled their opposition to it. That’s probably enough to sink it. And Cruz’s colleague from Texas, Sen. John Cornyn (R-TX), even signaled that its path ahead was fraught given widespread resistance to the limitations.

The Senate knows that if the provision is left in, that could doom the whole bill when it gets sent back to the House. Rep. Marjorie Taylor Greene (Q-GA), for example, claimed she hadn’t read that part of the bill before voting on it and is really mad at someone other than herself.

“I am 100 percent opposed, and I will not vote for any bill that destroys federalism and takes away states’ rights, ability to regulate and make laws when it regards humans and AI,” Greene told reporters, after voting for just such a bill. (Perhaps she should have had AI read it for her.)

Rulings still to come

MacDonough has still to rule on a number of provisions, but every indication is that to date she is doing a stellar job of keeping the bill neat, free of incidental add-ons, and far less dangerous than it could have been.

She has yet to rule on the biggest question of them all, known widely as the “current policy baseline.” This is an accounting trick that the GOP is using to claim that tax cuts that are extended don’t actually cost anything, even though they will actually cost $3.76 trillion over the next 10 years. Add that to the $441 billion in new expenditures and you get to $4.2 trillion in new extended tax breaks and outlays.

Further, if the Republicans decide to tinker around more with Medicaid, including setting up a fund to help rural hospitals survive their cuts to the program, they could wind up running afoul of the Byrd Rule. They have got to be cautious about how they plan to make up for shortfalls for states that will be hardest hit.

These questions aside, there are already plenty of reasons to cheer MacDonough’s work. She’s truly an unsung hero: a nonpartisan and unbiased civil servant whose decisions are sparing millions of Americans from significant pain and suffering, not to mention shielding our environment and our federal lands from the worst excesses of the GOP.

Elizabeth MacDonough, our Senate Parliamentarian, here’s to you!