SCOTUS clears the path for Trump's network of global gulags
And the MAGA justices are burning down the judiciary in the process.
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On Monday, the Supreme Court issued its most shameful shadow docket ruling yet.
With one anodyne paragraph, the Court simultaneously cut the legs out from under lower court judges and consigned countless immigrants to be renditioned to a system of global gulags.
It’s a decision that will have long lasting corrosive effects on American civil society and respect for the courts.
“I cannot join so gross an abuse of the Court’s equitable discretion,” Justice Sonia Sotomayor wrote in her impassioned dissent.
DVD v. DHS
The case involves a challenge to third country removals — that is, immigrants who cannot be repatriated to their home countries and are instead being dumped in some other nation which will accept them.
Like most of the people swept up in Trump’s deportation dragnet, the vast majority of affected immigrants were released into the community years ago and have been doing harm to no one — a reality the administration tries to hide by blasting out mugshots of the tiny minority of deportees with serious criminal records.
But The Intercept reports that, in its bloodthirsty quest to shove out as many people as fast as possible, the White House “explored, sought, or struck deals with at least 19 countries: Angola, Benin, Costa Rica, El Salvador, Eswatini, Equatorial Guinea, Guatemala, Guyana, Honduras, Kosovo, Libya, Mexico, Moldova, Mongolia, Panama, Rwanda, Saudi Arabia, Ukraine, and Uzbekistan.”
On March 23, a group of detainees sued in the District Court of Massachusetts seeking an injunction barring the government from deporting them to third countries without notice and an opportunity to object under the Convention Against Torture (CAT). Citing the Supreme Court’s rulings in the Alien Enemies Act cases, Judge Brian Murphy reasoned that telling people as they are being loaded onto planes that they’re about to be dropped in a country they’ve never seen clearly violates due process:
This case presents 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? Defendants argue that the United States 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. All nine sitting justices of the Supreme Court of the United States, the Assistant Solicitor General of the United States, Congress, common sense, basic decency, and this Court all disagree.
Judge Murphy ordered the government to provide detainees written notice “in a language the alien can understand,” with “meaningful opportunity for the alien to raise a fear of return for eligibility for CAT protections and … if the alien is not found to have demonstrated ‘reasonable fear,’ provide meaningful opportunity, and a minimum of 15 days, for that alien to seek to move to reopen immigration proceedings to challenge the potential third-country removal.”
It should be noted that Judge Murphy repeatedly asked the government to define the minimum notice it believed would comport with due process. Perhaps wary of getting held in contempt if the DHS ignored it, the DOJ flatly refused to commit to any notice at all.
The government appealed to the First Circuit, which refused to stay Judge Murphy’s ruling pending appeal, after which the DOJ sought emergency review at the Supreme Court. But meanwhile, the situation had gotten totally out of hand thanks to the government’s consistent refusal to abide by the court’s order.
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Fake compliance
On March 31, just two days after Judge Murphy issued his original temporary restraining order, DHS deported three men covered by it to CECOT in El Salvador. The government’s explanation was that the Defense Department transported the men … albeit after DHS left them on a runway at Gitmo.
The DOJ argued that, because no DHS employees were on the rendition flight, the TRO wasn’t violated. That’s the legal equivalent of scratching your eyebrow with your middle finger while staring directly at the judge.
Then on May 7, the plaintiffs raced into court seeking emergency relief amid reports that the administration was going to rendition migrants to Libya, a country where prisoners report being sold as slaves.
“If there is any doubt — the Court sees none — the allegedly imminent removals, as reported by news agencies and as Plaintiffs seek to corroborate with class-member accounts and public information, would clearly violate this Court’s Order,” Judge Murphy wrote. That prompted Secretary of State Marco Rubio to submit a declaration huffily accusing the judge of interfering in US foreign policy … by not letting the government illegally rendition people to a country with no stable government.
The Justice Department was also forced to withdraw its claim that a Guatemalan man who claimed to have been kidnapped, raped, and held for ransom in Mexico blithely informed his guards that he had no fear of being sent to that country, even as he was being loaded onto a bus headed for the airport. This scenario — so farcical as to be offensive — turned out not to be true, even though the government attested its veracity before multiple courts.
The man was eventually returned to the US. But the administration had no intention of complying with the court’s order, and on May 20, a plane loaded with eight men who could not be sent to their home countries took off for South Sudan.
Contempt by any other name
On the morning of May 19, eight detainees at an ICE facility in Harlingen, Texas, were informed they’d be deported to South Africa the following day. At 6:35pm, they were told that the correct destination was South Sudan, a country on the State Department’s “Do Not Travel” list “due to crime, kidnapping, and armed conflict,” where “Foreign nationals have been the victims of rape, sexual assault, armed robberies, and other violent crimes.”
By 9am on May 20, they were wheels up en route to Africa.
Judge Murphy hauled the parties into court for a hearing that afternoon, and the government conceded that the men were at that moment on a tarmac in Djibouti. Finding that DHS had once again defied his order, Judge Murphy asked the DOJ to craft some kind of solution to figure out how to give the men the process they were due, specifically time to consult their lawyers and raise fears of torture to an immigration judge. The DOJ lawyers present at that hearing requested a recess to consult with DHS, after which they told the court that they could accomplish all that while leaving the men in Djibouti.
To be clear: That was the government’s choice. DHS could have brought them back to the detention center in Texas. But since then, the DOJ has been lying in court documents, accusing Judge Murphy of foisting an unworkable and dangerous situation on DHS.
“Having slammed on the brakes while these aliens were literally mid-flight — thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals — the court then retroactively ‘clarified’ its injunction to impose an additional set of intrusive and onerous procedures on DHS,” Solicitor General John Sauer complained to the Supreme Court in his application to stay the lower court’s order. “As a result, the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil — where each day of their continued confinement risks grave harm to American foreign policy — or bringing these convicted criminals back to America.”
That is what the Supreme Court’s conservatives are blessing with this order on the shadow docket. They are giving the greenlight to Trump to establish this system of global gulags and rendition people who have no connection to those countries to be jailed indefinitely, dumped on the street, or possibly repatriated to the places where American immigration judges have found they face grave danger of persecution.
It is, as Judge Murphy said, shockingly inhumane and antithetical to the Constitution’s guarantee of due process. It is also an assault on the federal judiciary’s ability to hold the government to account.
Burning down the judiciary to save Trump
As Justice Sotomayor noted in her furious dissent, parties who have acted in bad faith are supposed to be barred from receiving equitable relief under the “Clean Hands” doctrine. And yet, the Supreme Court’s conservatives are now rewarding the DOJ and DHS for repeated defiance of the Judge Murphy’s order, allowing it to use the very chaos it created as justification to allow it to break the law more.
“Given its conduct in these proceedings, the Government’s posture resembles that of the arsonist who calls 911 to report firefighters for violating a local noise ordinance,” Justice Sotomayor scoffed.
Moreover, the judicial system only works if litigants understand they have to abide by rulings they don’t agree with. If the government can simply throw up two middle fingers and keep on violating court orders, then the whole system of checks and balances is meaningless.
Sotomayor writes:
The Government thus openly flouted two court orders, including the one from which it now seeks relief. Even if the orders in question had been mistaken, the Government had a duty to obey them until they were “‘reversed by orderly and proper proceedings. That principle is a bedrock of the rule of law. The Government’s misconduct threatens it to its core. So too does this Court’s decision to grant the Government equitable relief. This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.
It’s a bad day for democracy. The orgy of cruelty that is sure to follow this lies squarely at the feet of the Court’s conservatives.
That’s it for today
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Is anyone compiling a list of the attorneys who are working on behalf of this lawless regime? We need a complete list for future consequences even if the consequences are limited to shunning.
The Supreme Court is supposed to uphold the law and judicial procedure. It sometimes fails, as with the separate but equal doctrine, but those failures are increasing with this particular court. Witness the Dobbs decision and the so-called presidential immunity decision. These flawed rulings have real world consequences for real people. Too many of the six conservative justices served in the executive branch before their judicial appointments, and they lean toward giving it unfettered authority in direct violation of the separation of powers embodied in the Constitution. They also approach the law as a theoretical matter divorced from its effect on human beings.