Rogue SCOTUS on the loose

Too much has happened in recent days to cover, even though these days, all the news seems to be relevant subject matter for this newsletter. Over the weekend, the U.S. bombed Iran without going to Congress or making a case to the American public. On June 18, the U.S. Supreme Court affirmed the lower court decision in the Skrmetti case allowing the state of Tennessee to deny trans minors access to gender-affirming care. And Monday, we got a mash note for the administration from SCOTUS on the topic of deportations, this time on the shadow docket.

Starting a war is typically a bad development in authoritarianism, although when it’s unpopular enough, it sometimes hastens the exit of a vulnerable leader. And the Skrmetti decision likewise involves further acceleration into authoritarianism because it denies equal humanity and rights to a group of Americans—in this case forbidding access to medical care that non-trans children can get in the same state.

So I’ll talk more about the Skrmetti case and Iran another time. But for today, because matters of detention and removing people from society sit firmly in my wheelhouse, I’m going to focus on DHS vs D.V.D., the Supreme Court’s Monday decision. It authorizes deporting people from the U.S. not to their country of citizenship or birth (or from which they arrived in the U.S.) but to random third countries, at the whim of the executive branch, without a chance to argue that the destination country might be dangerous for them—that torture or forced labor or extrajudicial detention might await them there.

As always, at the end of the post, I’ll cover some specific things you can do to help stop the further degrading of democracy. But I’ll start with Monday’s Supreme Court case and how it likely sets the stage for a world with a lot more concentration camps.

What actually happened?

First, I’m not a lawyer. So I’ll mostly be addressing why things matter in terms of harms to democracy or devolution in civilian detention that a new ruling or policy might represent.

That said, in either a 5-4 or a 6-3 decision—we don’t know which one!—the U.S. Supreme Court is allowing the administration to deport undocumented people to dangerous places without without due process. Though a dissent was appended, no legal rationale for the majority’s decision was included in anything released to the public on Monday.

Justice Sotomayor wrote the dissent for the three liberal justices, noting, “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,” she continued, “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.”

The decision to allow this kind of arbitrary deportation without regard for what harms might befall a given individual sent shock waves through the legal community. Steve Vladeck and Aaron Reichlin-Melnick—the first an insightful analyst on legal matters and the second equally trenchant on immigration issues—both called the ruling “disastrous.”

The ruling was a disappointment in part because in May, SCOTUS had held 7-2 that foreigners the government wanted to deport from U.S. soil under the 1798 Alien Enemies Act had to be given due process before deportation, at least while litigation proceeds. But the decision was limited to those deported under that act.

The shadow docket

Further complicating matters, this ruling came unfortunately to us through the shadow docket, which is a kind of side docket historically used to make administrative decisions and schedule court dates. Consequential rulings can sometimes happen there, such as a refusal to take up a case, or an order to a lower court. But typically, when an important case is considered, it happens on the merits docket, not the shadow docket. On the merits docket, as the Brennan Center link above explains, there’s an extended set of arguments and briefs involved, and the legal justification for the decision is laid out.

The current court is making greater and greater use of the shadow docket for things that would have normally been on the merits docket. In addition, it often seems that they do so in order to avoid having to justify controversial rulings.

All of which means that we have no indication of how broad or narrow this particular decision is, how the majority came to its opinion, or why they would grant emergency relief to an administration that has acted in bad faith repeatedly in multiple cases on these matters and in this one specifically.

Where we are

The ruling seems to say that for now, the government is free to send an immigrant in detention to a country with which they have no connection by birth or citizenship without any chance to argue that they’re at risk of torture or other harms in that country.

When the idea is presented absent context, you might imagine that an immigrant from El Salvador who can’t legally be returned to El Salvador under current law (because of risk from gang violence or persecution by the government or both) might be deported to a neutral country willing to take them. Maybe France or Italy—who wouldn’t like a little vacation?

The reality is somewhat different. Countries don’t typically want to take in those who aren’t their own citizens. You might have noticed that there’s currently a global political crisis in which immigrants have been demonized worldwide.

The new host country is put in an especially bad position if the government deporting the immigrants is claiming that the detainees are violent criminals. Even if they know this is highly unlikely to be true, domestic politics make the optics very difficult to absorb without damaging the government welcoming these immigrants.

In some cases the third-country deportations are due to people refusing to return to their home country voluntarily, due to persecution. At other times, the receiving country itself will not take unwilling nationals back. So third-country deportations are likely to involve immigrants who do not want to go and locations that don’t actually want them.

Bribes and favors

How, then, can the Trump administration still deport them? By bribing or bullying a third country into accepting people. If the bribe is big enough, and the country is poor enough, that might suffice on its own. If the U.S. doesn’t require any guarantees of safety for the deportees, perhaps the incoming immigrants can be trafficked or forced into indentured labor for the benefit of those involved. Or perhaps a country will be willing to do the U.S. a favor by detaining them, if the U.S. is willing to do a political favor in return.

Keep in mind that since February, the Trump administration has already been sending or making plans to deport immigrants to a variety of third countries: Panama, Libya, Rwanda, El Salvador, and South Sudan.

What do nearly all these places have in common? They have reputations of lawlessness and instability. They further the government’s attempt to instill dread in those it targets, and to use public terror as a tool to project brutality and omnipotence to noncitizens.

Performatively brutalizing noncitizens is also currently part of the administration’s outreach to its base. But introducing background terror also suggests to U.S. citizens that working at cross-purposes with the government’s violence against immigrants might be dangerous for them, too.

Trump has already told El Salvadoran president Nayib Bukele that he has some interest in sending U.S. citizens to CECOT, the mega-prison there. And Secretary of State Marco Rubio mentioned that Bukele had agreed to do so, before another official followed up later to say that the option wasn’t under discussion at this time. It’s clear that these detention projects are meant to be grey around the edges, in terms of what categories of people can be detained and deported, and where they can be sent.

U.S. citizens at risk, too

In fact, we already know that in any large-scale operation, U.S. citizens can be and have been swept up by accident. Being able to rush the process is likely to lead to both unintentional and deliberate errors. As it is, Sergio Perez, Executive Director at The Center for Human Rights and Constitutional Law, reported meeting employers this week at a federal building in LA who were “seeking to help employees abducted by ICE—including one boss seeking freedom for a U.S. citizen staffer who was arrested in the space between their uber and the front door of their workplace. Their boss had their U.S. passport in hand, pleading for their release.”

As I mentioned this spring, these kind of cross-border operations recall the Night and Fog operations conducted by the Germans in the Nazi era, by the French in Algeria in the 1950s and early ‘60s, by South American dictatorships in the 1970s and ‘80s, and by the U.S. itself in the War on Terror after 9/11.

So often in history, when you allow extreme measures to be carried out on opponents a government labels as terrorists, officials simply then designate a larger group of people as terrorists in order to punish others who become similarly inconvenient.

We’re already seeing this expansion in the area of immigration. Half a million people here legally with temporary protected status saw that status revoked last month. And we’ve seen the shocking arrest and detention of foreign students for what appear to be merely political reasons.

Two things are clear from this. First, that the denigration of immigrants for nearly a half century via competitive attempts between both parties in order not to be seen as weak on border policy has allowed a very concrete dehumanization, one now being exploited to commit horrific human rights abuses. Secondly, criminal and undocumented immigrants are only some of the people the administration would like to treat this way, even if it doesn’t yet have the means to move against the others.

Has the kind third-nation detention without due process now permitted by the Court happened before? After 9/11, the U.S. government pressured its allies to host black sites where the U.S. could commit torture and interrogations discreetly.

Since then, the U.S. has also had decades of experience trying to get countries to take hundreds of detainees released from Gitmo without charges. Negotiations are an arduous process and take time, even with pressure from the U.S. The most recent such transfers took place in January during the last days of the Biden administration—a full twenty-three years after Gitmo opened as a post-9/11 detention facility.

Reports suggest there are at least 53 countries that the Trump administration has approached so far. But history suggests that even with SCOTUS authorizing deportations without due process, it’s not just a question of flying people to foreign detention. The number of deportations the administration is likely planning will probably involve holding many people domestically until deals can be made and transportation networks established.

Alligator Alcatraz inanity

In a related development this week, the government has introduced the idea of using FEMA money meant for the housing and care of immigrants to imprison them instead at what’s being referred to as Alligator Alcatraz, a facility to be built in the Florida Everglades. Florida’s attorney general claimed that security expenses will be low because alligators and pythons are endemic to the region. Florida Governor Ron DeSantis is said to be exercising emergency powers in order to get the land on which it will be built.

All this recalls the original Alcatraz, perched on a rock supposedly surrounded by man-eating sharks. Or the Arctic Siberian camps of the Gulag. Across mile after mile of ice and snow, how could escapees survive? In this case, there’s a kind of competitive reality-show cruelty fueling every new action by the administration.

As others have noted this week, it’s fascinating that the government will use FEMA money for the Florida detention facility, because in right-wing conspiracy-theory circles, FEMA camps were said to be the means by which Obama was somehow going to impose concentration camps. (That link goes to an actual FEMA page from last year; we’ll see how long it stays up.)

Manus and Nauru

But in terms of Monday’s ruling, it’s worth looking at third-nation detention, in which one country publicly deports or exiles immigrants to countries that are not their homeland or country of birth. This has happened before, most notably when Australia imposed draconian measures on immigrants arriving by sea.

In 2001, Australia set up financial agreements for offshore immigrant detention on the outposts of Manus Island in northern Papau New Guinea, as well as the world’s smallest island nation, Nauru. Australia left immigrant detainees in horrific conditions for years, leading to suicidality and violence. Thousands of case reports of physical abuse and sexual assault recorded to detention staff were leaked to the press. And those are just some of what’s been reported about Australia’s outsourced detention.

Earlier this year, detention conditions on Nauru were condemned by Amnesty International, and the United Nations Human Rights Committee reiterated its earlier stance that Australia remained responsible for any abuse or harm done to detainees it offshored at Nauru. We have every reason to believe that many of the immigrants we deport via agreements like those the administration is currently developing will face the same fate or worse.

Effects of Monday’s ruling

If anyone was hoping that the courts would singlehandedly save us, this week is profoundly demoralizing. But it’s worth remembering that although Supreme Court rulings can have greater and more final effects than many decisions from the lower courts, these kinds of adverse Supreme Court rulings have been the anomaly. Overall, the courts have been trying to protect Americans, documented and undocumented.

Since Trump’s return to office, the courts have, on immigration cases, mostly provided sound legal interpretations that preserve individual rights and respect case law. Stanford professor Adam Bonica noted today that since May 1, the “Supreme Court is at war with its own judiciary.” Federal district courts have ruled against the government in 94% of rulings. Yet the Supreme Court has backed the Trump administration just as completely as lower courts have opposed it: in 94% of cases.

What’s more, when the administration has been defiant, lower-court judges have acknowledged that government lawyers or administration officials did not appear to be operating in good faith. On immigration policy, the courts traditionally give the executive a lot of deference. But they’ve been withdrawing that deference where it’s proved unwarranted, and have issued some stinging rulings. But the lower courts can’t change everything. They, too, are up against a corrupt SCOTUS.

Despite Monday’s ruling, I would argue that five months of support from the lower courts has bought Americans time. That support has likely held more aggressive legislation at bay, at least temporarily, when Republicans in Congress couldn’t be sure what would be interpreted as constitutional.

The support has bought us five months in which the administration has proceeded recklessly, but not as violently as it could have, if it had been sure at an earlier point that SCOTUS would back rendition without due process to third countries.

Those months have been invaluable. Remember, it was only June 14, less than two weeks ago, that Trump sat watching his miserable birthday parade, while millions of Americans showed up to defy him in the streets. We have begun to link together in ways that let us know that we’re not alone, and we have power.

Millions more wanted

As we follow stories of the success of smaller efforts, such as protesters gathering at Dodger stadium pressuring ownership to refuse use of its lots as a staging area, people are coming together have begun to realize what we’re capable of together on a bigger scale.

It’s not a given that we can prevent or roll back all these harmful policies, but we have enough people committed to the effort that we can have real effects on what happens next.

Still, we need millions more! The larger the number of people we bring aboard nationwide, the more we can accomplish. I’m thinking of a woman Monday night who wrote to me to say that none of it would do us any good if SCOTUS was against us.

I don’t think that’s true. We’re in a hard place for sure, but every delay, every signal that what SCOTUS is doing is corrupt, every ruling asserting the actual rule of law and due process is helpful. When every life is worth saving, every toehold matters.

It’s often been said that unlike the executive branch, the courts have no army. I’ve said before that we are the courts’ army. That’s us. And while the lower-court decisions help give additional moral weight to public actions protecting immigrants, the truth is that we are our own army, in terms of the power of government ultimately being vested in us.

What to do

Though several deals may be in process, it will take some time to work out arrangements to push third countries to accept deportations on the scale under discussion. Which means the current backlog and overcrowding already underway is likely to get worse. Expanding transportation networks will generate their own crises. Last month, Abelardo Avellaneda Delgado, a 68-year-old Mexican man died in ICE custody while being transported, becoming the first recorded in-transit death in a decade. We can expect this to become more common.

Meanwhile, over 59,000 people are currently in ICE detention, which is likely a new record. Most detainees are held in the country’s interior, facing inhumane conditions at facilities that are far over capacity. What can we do for those in detention in the U.S. in unspeakable settings?

Call your representatives to let them know you expect them to speak up against the police-state treatment of immigrants, and to stand up for due process for everyone. Connect with groups representing people or helping families of those detained in your community. Write opinion pieces for local newspapers, or organizing social media campaigns, especially those that will reach those who don’t already know about the crisis or haven’t taken a public stand. Make flyers to distribute in public areas about dangers facing immigrants in your community and ways people can help.

Just last weekend, more than a hundred people protested the reopening of an immigrant detention facility in Lake County, Michigan. Find out what facilities are near you and see if anyone is already organizing these kinds of actions. Keep these these developments in the public spotlight as much as possible. If people don’t know or don’t hear about what’s going on, the horrors will only expand.

You can also encourage your representatives to fight bills like those introduced by Marsha Blackburn’s recently proposed “Protecting Law Enforcement from Doxxing Act,” which would allow agents to remain anonymous while they carry out their inhumane work and punish those who reveal their identities.

Quiet connections

If you’ve ever imagined you would be the kind of person to hide Jews in your attic in World War II, I encourage you to think about what kind of roles might be available to you today.

Getting involved with local programs helping immigrants, or barring that, if you’re in a deep-red region, finding local churches where immigrants gather, or reaching out to teachers at schools where there are large immigrant populations might help you connect to these communities to find out what the needs are.

There are lots of public roles to take, from legal aid, tutoring, and food pantries to supporting literacy work, English-as-a-second-language programs for adults and children, babysitting while parents meet with legal staff, or volunteering with nonprofit or local volunteer groups overwhelmed with administrative paperwork.

And in time, there may be more private roles to take, too—something closer to the World War II scenario or the Underground Railroad. If that comes to pass, yesterday was the time to connect to the communities in need, to build those relationships and understand what’s required and what’s possible at any given time. If you didn’t do it yesterday, today is better than tomorrow.

Yet the truth is that most of us are unlikely to ever need to do Hollywood movie heroics. There’s usually so much more that gets accomplished by doing the right thing in our communities by reaching out to people day to day in more public and mundane ways. The more people come together publicly to help, the more attractive doing the right thing will become to people currently on the sidelines. And through involvement, you will learn the ropes and judgment for situations in which discreet actions might be more useful.

But you’ll only know how you can fit in on the ground if you show up and start helping. And people will only know they can count on you if you already have a connection to them. What are you doing today to make clear you’re one of the good guys?

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