Over a dissent that accused the majority of “rewarding lawlessness,” the Supreme Court granted the Trump administration’s request to block a judge’s order that had stopped the government from rapidly deporting certain immigrants to countries they aren’t from, or so-called third countries.
The court’s three Democratic appointees dissented from Monday’s decision, which the majority did not explain.
“Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied,” Justice Sonia Sotomayor wrote. “I cannot join so gross an abuse of the Court’s equitable discretion,” she added, joined by Justices Elena Kagan and Ketanji Brown Jackson.
A lower court judge had ruled that migrants needed a chance to challenge their removals on the grounds that they could be tortured or killed in these third countries.
But that makes deportations dramatically more difficult to carry out, Solicitor General John Sauer wrote in a May 27 application. “Those judicially created procedures are currently wreaking havoc on the third-country removal process,” Trump’s top Supreme Court lawyer wrote. “In addition to usurping the Executive’s authority over immigration policy, the injunction disrupts sensitive diplomatic, foreign-policy, and national-security efforts,” he wrote.
Sauer said the case involves “the government’s ability to remove some of the worst of the worst illegal aliens.” He noted that when they commit crimes here, they’re usually removed, but that when their crimes are “especially heinous, their countries of origin are often unwilling to take them back.”
U.S. District Judge Brian Murphy framed the matter differently when he granted a preliminary injunction and certified a class action in April. He said the case presented “a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?”
The Biden appointee in Boston said the government was arguing that the U.S. “may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation.” Murphy cited the Supreme Court’s recent ruling in a different case upholding due process when he wrote that “[a]ll nine sitting justices of the Supreme Court of the United States” disagree with that position.
Similarly, in opposing the government’s high court application, the migrants’ lawyers argued that Murphy’s order “provides a basic measure of fairness to comply with nondiscretionary statutory protections: meaningful notice and an opportunity to be heard.”
In his application, Sauer complained that Murphy’s order forced the government to keep migrants at a military base in Djibouti while their claims are being sorted out. In the opposition filing, the migrants observed that it was the government’s choice to keep them there, because Murphy’s order also allowed for their U.S. return to address their claims here. The judge had said the government needed to “maintain custody and control” until they’re afforded due process under his order.
Murphy also said the government had violated his order when it put the group of migrants on a plane to South Sudan without giving them a proper chance to challenge their removal. In a May 26 ruling, he said administration officials were “manufacturing the very chaos they decry.”
Sotomayor closed her dissent by recounting the importance of due process, a recurring theme throughout Trump’s second term.
“By rewarding lawlessness, the Court once again undermines that foundational principle,” she wrote. She said the court apparently “finds 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.”
She called that use of the high court’s power “as incomprehensible as it is inexcusable.”
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
