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
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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
