DOJ rushes to SCOTUS in dispute over people it is trying to send to South Sudan
Also: SCOTUS conservatives back Trump on firings, as Roberts protects DOGE records for now. And: Law Dork, out and about.
On Tuesday afternoon, the Justice Department went to the U.S. Supreme Court to ask the justices to stop a district court from ordering the administration to implement the steps DOJ told the district court that the administration could take.
The absurd request came in the case where U.S. District Judge Brian Murphy held multiple hearings this past week to address the administration’s effort to send people to South Sudan — a country from which the Trump administration has removed all “non-emergency U.S. government personnel” due to the dangerous conditions.
After the flight had already left the U.S. in then-apparent violation of a prior preliminary injunction issued by Murphy, he ordered the administration to keep the men it had sent out of the country within their “custody and control.” Later, after the flight landed at a U.S. military base in Djibouti, Murphy found the administration had violated the preliminary injunction. Then, after further hearings, the Trump administration said it would be able to hold reasonable fear interviews there and Murphy issued an order setting the remedy for violating the preliminary injunction by doing so. That order included this note:
Murphy also issued a correlating clarification of his preliminary injunction to cover treatment of others subject to third country removals — deportation to a country other than a person’s country of origin or another country in which they have legal status — going forward.
Then, DOJ filed an indignant motion on May 23, asking that Murphy reconsider all three of those orders — despite Murphy’s extensive time spent working with Trump administration officials to craft an order that they said they could implement.
On May 26, Murphy denied that request, calling out DOJ’s actions for what they are: “Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry,” Murphy wrote.
Less than 24 hours later — and without so much as filing a document with the U.S. Court of Appeals for the First Circuit — DOJ went to the Supreme Court.
As is the normal practice with applications, the request was filed in the name of the solicitor general. In this administration, that role is played by Solicitor General D. John Sauer — the president’s former criminal lawyer, who represented Trump before the Supreme Court in the immunity case.
This is how Sauer described what I just detailed above:
Last week, the district court required the government to halt the ongoing third-country removal of the aforementioned criminal aliens to South Sudan. The court did so by exploiting an open-ended term in its injunction, holding that the government did not give them a “meaningful opportunity” to raise a fear of torture in that country— notwithstanding that they were all notified they were going to be removed there, and that none expressed any fear at the time, or even that day. 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.
The application is directed to Justice Ketanji Brown Jackson as the circuit justice for applications out of the First Circuit, and the first question will be how DOJ’s failure to even seek relief from the First Circuit will be treated.
Independent agencies are dead — unless you’re the Fed. (Allegedly.)
As everyone — including yours truly — headed off for the long holiday weekend, the U.S. Supreme Court changed the way our country works.
I know, that seems a little dramatic, but it really isn’t.
While purporting not to rule on the merits, the conservative justices enforced and expanded the “unitary executive” theory on May 22 by allowing President Donald Trump’s firings of members of multi-member boards — what we used to call “independent agencies” — to go into effect while litigation proceeds. Although the court in recent years has held that prohibitions on a president firing a solitary head of an agency are impermissible, a 90-year-old precedent, Humphrey’s Executor v. U.S., upheld the permissibility of removal restrictions for members of multi-member agencies, where their expertise is key and makeup is a bipartisan one.
Despite Humphrey’s Executor still — currently and perhaps only technically — being in effect, the court’s conservatives ruled that Trump’s firing of Gwynne Wilcox from the National Labor Relations Board (NLRB) and Cathy Harris from the Merit Systems Protection Board (MSPB) could go into effect while litigation proceeds.
As Justice Elena Kagan wrote in dissent for her and Justices Sonia Sotomayor and Ketanji Brown Jackson, “Our emergency docket, while fit for some things, should not be used to overrule or revise existing law,“ later asserting, “the order allows the President to overrule Humphrey’s by fiat … pending our eventual review.“
Like with the anti-trans military ban ruling on the shadow docket, the wording of the action means that the court will allow lower court litigation to proceed and then any Supreme Court consideration — during which time, likely through at least June 2026, the firings would remain in effect.
The court’s unsigned two-page, four-paragraph statement purported not to be a ruling on the merits, asserting that “we do not ultimately decide in this posture whether the NLRB or MSPB falls within” Humphrey’s Executor, which went unnamed in the opinion.
At the same time, however, they showed that this really was a substantive ruling — and also undermined the unitary executive theory — by carving out the Federal Reserve from what they had just insisted was not a substantive ruling:
As explained by Steve Vladeck — and, within that, Christine Kexel Chabot — this is bad as a legal move and as a reading of history.
And yet, this dramatic re-ordering of the balance of power between the executive and legislative branch — limiting the types of agencies it can create — is now effectively the law of the land, without any alleged merits ruling and no Supreme Court hearing even planned.
What’s more, that wasn’t all.
On May 23, Chief Justice John Roberts blocked — with a so-called “administrative stay” — a district court’s discovery orders in a case over the non-department Department of Government Efficiency and, specifically at issue here, whether it is subject to Freedom of Information Act requests.
As of close of business on Tuesday, the administrative stay remains in effect — giving the Trump administration, Trump, and Elon Musk exactly what they want.
All in all, as we went into Memorial Day Weekend, the Supreme Court and the chief justice made clear that the court’s shadow docket remains a powerful tool the Trump administration can use in ways that other administrations — and certainly other parties — would never be able to get away with.
No wonder then that Sauer asked the justices to block a district court’s order in the third country removals case on the first business day after the holiday weekend.
Law Dork, out and about
On May 21, I participated in a panel for health care journalists to help folks prepare for June and the many coming Supreme Court rulings.
In the Association of Health Care Journalists panel, we focus on cases addressing transgender health care; Planned Parenthood funding; and preventive care, including PrEP — but talk about some broader concepts and questions as well.
It’s been posted online, so anyone can check it out! Also, there are additional resources listed on their website here.
"shadow docket remains a powerful tool the Trump administration can use in ways that other administrations — and certainly other parties — would never be able to get away with"
Prof. Vladeck's book shows how the shadow docket changed significantly during the first Trump Administration. It is a question significantly about personnel. Tweaking without dealing with the personnel is unlikely to do much. Long-term, major changes need to be made.
Can't wait to see what KBJ has to say about this. Sauer clearly directed the filing in the district court. I don't know what he did prior to being engaged by Trump, but he is just evil.