The Volokh Conspiracy
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Supreme Court Issues Terrible Shadow Docket Decision Lifting Injunction Against "Third Country" Deportations of Migrants Without Due Process
The ruling includes no analysis. Justice Sotomayor's dissent has a compelling explanation of why it is wrong.
In yesterday's decision in Department of Homeland Security v. D.V.D, the Supreme Court stayed a lower-court injunction barring the federal government from deporting migrants slated for deportation to "third countries" without due process - that is, nations other than their countries of origin or ones they had agreed to be sent to. Such deportations risk sending migrants to places where they might be subject to violence or torture, and where they have no connections or ability to support themselves, as, e.g., in the case of Asians and Latin Americans deported to places like South Sudan.
Like many "shadow docket" decisions, this one includes no reasoning justifying the majority's ruling. Justice Sonia Sotomayor's dissent on behalf of the three liberal justices provides a compelling statement of the many reasons why this is decision is a terrible mistake.
Here is a brief excerpt:
Turning to the constitutional claim, this Court has repeatedly affirmed that " 'the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings." J. G. G., 604 U. S., at ___ (slip op., at 3); A. A. R. P., 605 U. S., at ___ (slip op., at 3). Due process includes reasonable notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Of course the Government cannot avoid its obligation to provide due process "in the context of removal proceedings," J. G. G., 604 U. S., at ___ (slip op., at 3), by skipping such proceedings entirely and simply whisking noncitizens off the street and onto busses or planes out of the country.
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.
This is just one of many good points Sotomayor makes in her dissent. Perhaps the majority has compelling responses to them. But, if so, I wish they would tell us.
I am not one of those commentators who categorically rejects the Supreme Court's greatly increased use of the "shadow docket" in recent years. Sometimes, these quick rulings based on limited briefing, no oral argument, and truncated time for deliberation are necessary to prevent serious injustices from continuing. But they can also lead to badly reasoned or wrongheaded decisions, which I fear is what happened here.
One question that comes to mind is why the Supreme Court majority was willing to torpedo due process here, despite pushing hard to protect it in its three recent Alien Enemies Act deportation rulings. Justice Sotomayor pointedly cites them in the passage quoted above.
I don't know the answer, because the majority didn't tell us. But two possible explanations come to mind. First, maybe the majority believes (correctly) that Trump's invocation of the Alien Enemies Act is illegal, whereas they think the administration does have the authority to deport the migrants at issue in the D.V.D. case. But even if the administration is legally entitled to deport these people somewhere, Justice Sotomayor compellingly demonstrates that serious due process issues arise with deporting them to third countries.
A second possible explanation is that the majority justices don't think it matters much exactly where these people are deported to, so long as deportation to some location outside the US is legal. But, as Sotomayor explains, in many cases the destination matters greatly. I don't think you need to be a legal scholar or an immigration policy expert to see why. Just imagine being deported to a poverty-stricken, violent country, ruled by an oppressive government, where you have no contacts and don't speak the local language.
Perhaps there is some other crucial distinction between the AEA cases and D.V.D. that influenced the majority justices, that I overlooked. If so, I wish they had told us what it is. If nothing else, this case highlights the desirability of including at least some explanation of the reasons for the result when the Supreme Court issues a "shadow docket" ruling on an important issue - as this one surely is.
UPDATE: Quinta Jurecic has a valuable Lawfare article detailing the history of this case, and the government's various attempts to circumvent court orders, verging on outright defiance.
