The Supreme Court just handed the Trump administration another major immigration victory. On Tuesday, September 29, the justices cleared the way for the government to keep deporting illegal aliens to third countries while the legal fight plays out.
The vote broke along familiar lines. The court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, said they would have kept the lower court’s limits in place.
The ruling puts on hold a decision by Boston-based District Judge Brian Murphy, who found the Homeland Security policy unlawful. The First Circuit Court of Appeals had upheld most of his ruling on September 18, and it took effect on September 23.
That sent the administration racing to the high court. Solicitor General John Sauer told the justices that the lower court’s order had created substantial logistical problems for ongoing removals, added expense, and raised diplomatic issues.
Most importantly, he warned it was blocking the removal of dangerous criminals. One deportation flight carrying about 70 people with criminal convictions to three countries had already been canceled.
Sauer called third-country removals an essential tool for removing some of the worst criminal aliens. That is the heart of the issue.
Third-country removals exist because some nations refuse to take back their own citizens. When a murderer, rapist, or gang member cannot be sent home, the government needs somewhere else to send him.
The administration has used the policy widely. Under a series of agreements with foreign governments, roughly 25,000 people have been deported to more than two dozen countries, though the vast majority went to Mexico.
Other destinations have included South Sudan, Eswatini, Rwanda, Uganda, Equatorial Guinea, Liberia, the Central African Republic, and Guyana. Critics have seized on the more unstable locations.
This is not the court’s first intervention. It is the third time the justices have sided with the administration in this case, after earlier orders suspending Judge Murphy’s preliminary injunction and lifting limits he imposed regarding a group of men bound for South Sudan.
The latest order was brief and did not lay out the court’s reasoning, which is typical for emergency actions. The court also said it will hear a full oral argument in December.
That December hearing is the real cliffhanger. The justices will decide whether migrants must be given a meaningful chance to object before being sent to countries where they have no ties.
The challengers insist their position is modest. They say the lower court did not bar third-country removals but required notice and an opportunity to raise protection claims first.
The administration responds that the existing policy already requires diplomatic assurances that a receiving country will not persecute or torture the individuals. It argues that adding layers of process would grind removals to a halt.
There is also a bigger principle at stake. The Constitution gives the executive branch broad authority over the border and immigration enforcement, and a single district judge in Boston should not be able to freeze a national program.
Judge Murphy is a Biden appointee, and his earlier effort to block the South Sudan removals was overruled by the Supreme Court last year. That prompted unusual criticism from conservatives who argued that district judges keep overstepping.
The administration celebrated the order. A Department of Homeland Security statement said it yet again affirms the lawfulness of the president’s homeland security agenda.
Voters sent President Trump back to Washington to carry out mass deportations, and the court’s willingness to let the machinery keep running is a significant boost.
