On May 16, the Supreme Court handed down a significant order in one of the many swirling cases over the Trump administration’s efforts to seize immigrants and deport them to foreign prisons. In an unsigned opinion, seven of the court’s nine justices reaffirmed that immigrants needed a reasonable amount of time to challenge their deportations. Reading between the lines was an alarming recognition by the seven justices: The Trump administration was already violating their orders.
Trump officials’ refusal to follow high court orders has not caused an uprising.
The opinion was the first time the justices—all but two—acknowledged that when it comes to the Trump administration, the courts are not dealing with a compliant litigant. The United States government is generally given deference at the Supreme Court, a longstanding principle called the “presumption of regularity” by which judges extend government officials the benefit of the doubt that they are acting lawfully, until proven otherwise. But the Trump administration’s actions have served as that proof, and the Supreme Court seems to have grasped this new reality of a government gone rogue.
It can be hard to spot this defiance, because the administration typically acts as if it will follow court orders. In hearings and briefs, even when it is stretching the truth or misrepresenting the law, Justice Department lawyers behave as if everything is normal. Their defiance of the lower courts, and even the Supreme Court, does not have to take the form of a bold pronouncement against the judiciary. But among the trappings of legal proceedings, it is there, making a thousand small cuts into the rule of law.
The case, AARP v. Trump, arrived at the Supreme Court as an emergency appeal. On April 17, ACLU lawyers learned that their clients at ICE’s Bluebonnet Detention Facility in northern Texas were about to be sent to El Salvador’s infamous Terrorism Confinement Center (CECOT) under the Alien Enemies Act (AEA), a wartime law President Donald Trump has (illegally) invoked. They sought relief in district court, then at the 5th Circuit Court of Appeals, and finally at the Supreme Court. Minutes before midnight Central Time on April 18, the Supreme Court halted the deportations. The justices didn’t know it then, but the government had already loaded the detainees onto buses and taken them to an airport to be sent to El Salvador. The buses were turned around and the immigrants returned to Bluebonnet only because the courts had been alerted. In the end, the government complied—but only once it had been caught.
Notably, however, the government’s actions had violated a Supreme Court order from April 7 that required the administration to give reasonable time for immigrants to exercise their due process rights before being deported under the AEA. In AARP v. Trump, the seven justices reiterated the court’s unanimous holding from less than two weeks prior: “this Court explained—with all nine Justices agreeing—that ‘AEA detainees must receive notice… within a reasonable time and in such a manner as will allow them to actually seek habeas relief… before removal,” the majority wrote. “In order to ‘actually seek habeas relief,’ a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.” As Justice Sonia Sotomayor had warned on April 7: “To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court.” Just 11 days later, the government attempted to do exactly that with the migrants confined in Bluebonnet.
The justices‘ May 16 ruling also highlighted how the administration’s refusal to follow court orders—including those from Supreme Court—forced them to side with the detainees in this matter.
In the case of Kilmar Abrego Garcia, who was sent to CECOT in error, the Supreme Court had affirmed on April 10 that the administration must “facilitate” his return. Further, the justices told the administration that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” For all intents and purposes, the government has bucked both of these holdings. It has done incredibly little to facilitate Abrego Garcia’s return, and it has resisted sharing any information with the district court overseeing the case by deploying specious legal arguments. This week, it asked the district court to dismiss the case, alleging that because Abrego Garcia is no longer on US soil, the court has no jurisdiction—despite the Supreme Court and the 4th Circuit Court of Appeals seemingly affirming that jurisdiction when both sent the case back to the district court. Further, Trump himself has said that all it would take to get Abrego Garcia back is phoning Salvadoran President Nayib Bukele, yet he has refused to facilitate his return by placing the call.
“The administration is hoping to wear down the courts through sheer force of will.”
The administration’s intransigence in the Abrego Garcia case, including its refusal to follow lower court orders that the Supreme Court has itself upheld, informed the seven justices’ decision on May 16. “The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, where it is alleged that detainees face indefinite detention,” the court wrote. “Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” In other words, the court might be inclined to give the administration more leash if it trusted that the administration would correct any unlawful removals.
The holding itself, reminding the government that the high court had already required sufficient time for due process in AEA cases, was a major setback for the Trump administration. But in what Georgetown Law professor Steven Vladeck called “the quiet bombshell in the ruling,” the court recognized that the rights of detainees likely could not be vindicated if each had to sue individually for due process. That seemed to be shift from back on April 7, when the Supreme Court nixed an effort to secure nationwide class action relief for all similarly situated detainees and instead ordered them to challenge AEA removals through habeas corpus petitions where they are confined, ruling out the possibility of universal injunctions. By May 16, it was clear those habeas petitions would not happen, because the government wasn’t providing the due process that would make such challenges possible. By giving a nod of approval to proposed classes, the court again recognized that the administration cannot be trusted to provide meaningful due process despite the court having now, twice, ordered it.
But the May 16 ruling is only a setback if the administration follows this gentle reminder—and if the Supreme Court stands by it. In the meantime, the government continues to assert that 24 hours (or less) is enough notice to deport people under laws besides the AEA. The Supreme Court is already being asked to weigh in.
Three days after the Supreme Court’s decision in AARP that 24 hours is insufficient for due process, the government told at least two detainees they were being sent to South Sudan, one of the world’s most dangerous countries. Like El Salvador, South Sudan has agreed to accept deportees who are not from there. Less than 16 hours later—most of which was overnight and none during business hours—the government put eight immigrant prisoners on a plane and flew them to Africa. When lawyers for the immigrants figured out what was happening, they rushed to district court in Massachusetts, where Judge Brian Murphy had already issued an order, citing the Supreme Court’s April 7 opinion, requiring the government provide immigrants it seeks to send to a country that is not their own a “meaningful opportunity” to object over fears they may be tortured there. The flight was a blatant violation of Murphy’s order. And while this case concerned due process under the Immigration and Nationality Act, not the AEA, the principle of adequate notice and the ability to challenge that removal that the Supreme Court had just articulated days earlier logically applies.
Judge Murphy issued a new order halting the prisoners’ transfer to South Sudan until meaningful process can be administered. The administration has appealed to the Supreme Court, giving the justices a chance to stand by its guarantee of due process—or to back down.
The prospect of Trump and his administration disobeying the Supreme Court has been held up as a Rubicon-crossing moment from democracy to lawlessness. “If Trump doesn’t obey the Supreme Court,” Senate Minority Leader Chuck Schumer said in March, “and the rule of law goes by the wayside, I believe that there will be an immediate and strong reaction from one end of the country to the other in ways we have never seen.” He added: “Our democracy will be at stake then… we’ll all have to stand up and fight back in every way.”
There is ample evidence the administration has no intention of following court orders.
But the administration’s refusal to follow the Supreme Court’s orders in these immigration cases has not caused an uprising. In fact, its disregard has too often been treated as merely exhausting its legal options or part of the general course of litigation. The justices themselves, while clearly gesturing at the administration’s defiance, haven’t yet said the quiet part out loud.
Leah Litman and Daniel Deacon, both University of Michigan Law professors, have described how the administration has hidden its refusal to obey judges behind a veil of legal argumentation. “The administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not,” they write in the Atlantic, summarizing a forthcoming paper on the phenomenon. “We call this ‘legalistic noncompliance,’ a term intended to capture how the administration has deployed an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight. It is a powerful strategy, as it obscures the substance of what the administration is doing with the soothing language of the law.”
Legalistic noncompliance explains how the administration has ignored the courts without triggering the public backlash that Schumer predicted. Instead, the government defies the courts, again and again, slowly habituating the public to a government that doesn’t actually do what the courts tell it. Meanwhile, Litman and Deacon warn, judges clearly see the noncompliance. In response, they can either escalate the confrontation by calling it out, and risk triggering overt noncompliance. Or, fearful of a confrontation, they could backdown and ultimately give the government’s noncompliance a pass. “By advancing outlandish arguments in such a wide range of cases, and to a judiciary controlled by a conservative Supreme Court, the administration is hoping to wear down the courts through sheer force of will,” they write.
The Supreme Court faces this exact conundrum now. As the case of the detainees en route to South Sudan sits on its docket, the justices must determine whether to insist on meaningful due process before possibly sentencing detainees to a lifetime of confinement in a gruesome foreign country, or whether, worn down by the the administration’s refusal to provide due process, it will find a way to let the whole thing quietly go away.
Whatever the justices decide, there is now ample evidence, in these cases and others, that the administration has no intention of following court orders, including those of the Supreme Court. The question is whether the courts, and Americans, will ultimately do anything about it.
