Immigration law isn't one of the areas I've tracked, despite the absolutely awful situation of immigrants who are not lawfully present when it comes to their access to any care other than emergency health care. But the Court's decision this week -- in which it green-lighted the deportation of immigrants to countries with which the immigrant has no connection (read: countries with the absolute worst prisons and human-rights records) without a scintilla of due process -- deserves mention.
The opinions consist of an exceedingly brief unsigned order apparently on behalf the five or six conservative justices and a 19-page dissenting opinion by Justice Sotomayor that was joined by Justices Kagan and Jackson. What follows are a few quotations from the dissent followed by commentary by Prof. Steve Vladeck (his Substack column is well worth following) and a piece by Boston Globe senior opinion writer Kimberly Atkins Stohr):
- Sotomayor, J.:
In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order,
it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.
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. I cannot join so gross an abuse of the Court’s equitable discretion. . . .
It is axiomatic, moreover, that when Congress enacts a statutory entitlement, basic procedural due process protections attach. Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed. See 8 U. S. C. §1231 note. As this Court has explained, the “‘right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.’” Mathews, 424 U. S., at 333 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring)). Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts. Thus, plaintiffs have a right to be heard. . . .
There is no evidence in this case that the Government ever did determine that the countries it designated (Libya, El Salvador, and South Sudan) “w[ould] not torture” the plaintiffs. Application for Stay of Injunction 29. Plaintiffs merely seek access to notice and process, so that, in the event the Executive makes a determination in their case, they learn about it in time to seek an immigration judge’s review. The Fifth Amendment unambiguously guarantees that right. . . .
The Due Process Clause represents “the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 646 (1952) (Jackson, J., concurring). By rewarding lawlessness, the Court once again undermines that foundational principle. Apparently, the Court 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. That use of discretion is as incomprehensible as it is inexcusable. Respectfully, but regretfully, I dissent.
- Vladeck:
As long-time readers of this newsletter know, I’m not prone to hyperbole. But the title of this piece refers to today’s ruling as “disastrous.” In my view, that’s true for two reasons:
First, it is going to have massive effects. Keep in mind that, in a pair of similarly unexplained grants of emergency relief to the Trump administration last month, the Court cleared the way for the government to treat as many as one million migrants as removable who weren’t previously (including those with “temporary protected status” and those covered by a humanitarian parole program started by the Biden administration. Those folks can now not only be placed in removal proceedings, but even if they can’t be removed to their countries of origin, they can apparently be removed to other countries without additional process—at least until and unless something changes.
Second, and even more importantly, here is one of the most stark examples to date of the Trump administration overtly defying rulings by a federal district judge. Indeed, it did so twice in this case. For the Court to not only grant emergency relief in this case, but to offer nary a word of explanation either in criticism of the government’s behavior, or in defense of why it granted relief notwithstanding that behavior, is to invite—if not affirmatively enable—comparable defiance of future district court orders by the government. I would’ve thought that this was a message that this Supreme Court would be ill-inclined to send, even (if not especially) implicitly. But it’s impossible to imagine that the Trump administration will view it any other way. - Stohr:
[T]he Supreme Court’s majority has essentially washed its hands of its role in upholding the rule of law, the foundational principle that laws are meant to be followed by everyone, the government included, if we are to have a just society.
I don’t know how this court comes back from such an astonishing abrogation of its role at the top of a separate, coequal branch of government tasked with, among other things, being a check against tyranny from the executive branch. If last year’s ruling granting Trump broad immunity for illegal acts committed during his presidency was the shot, this week’s order was the bitter chaser.
For all the litigants (present and future) whose legal arguments depend upon the Court's interpretation of the Due Process and Equal Protection Clauses of the Constitution, hold onto your seats. If this case is any indication, it's going to be a bumpy ride.
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