When a party to litigation asks the Supreme Court for a stay of a lower court ruling, it is generally on the premise that the lower court’s ruling could lead to “irreparable harm”. The Constitution of the United States grants due process rights and equal protection, including an irreducible right to pursue legal redress for grievances, to all people. 

As the nation’s highest court, the Supreme Court, when the Government requests a stay on such grounds, the Court must consider not only the professed “harm” to the Government; it must prioritize the question of whether people without the Government’s power will suffer irreparable harm and injustice. There is no circumstance in which the Government of the United States is not subject to that standard.

In a case known as DEPARTMENT OF HOMELAND SECURITY, ET AL. v. D.V.D., ET AL., the Court’s conservative supermajority have just ignored that fundamental legitimizing respoonsibility and granted the Trump administration leave to temporarily continue deporting people to dangerous third countries—possibly subjecting them to permanent loss of their freedom, their rights against cruel and unusual punishments, or their lives—without those affected even having the right to argue against such harm in court. 

Justice Sonia Sotomayor, joined by Justice Kagan and Justice Jackson, wrote a stinging dissent, which may one day serve as a critical historical precedent for correcting this kind of unjust judicial action. Justice Sotomayor writes:

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, 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.

Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied. I cannot join so gross an abuse of the Court’s equitable discretion.

To be clear: The Supreme Court has not found that the Government’s third-country removals are lawful; nor has it found that it is lawful to summarily sentence people in this way or to deny them judicial review. That fact, however, does not mean granting temporary relief from the prohibition of such actions will not lead to grave harm to innocent people.

Justice Sotomayor’s dissent is founded on the fundamental responsibility of the judiciary to respond to harm or injustice in a way that defends the vulnerable, without granting undue priority to the wishes of perpetrators to have leeway to commit further offenses. That is the essential effect of this stay, which cannot be justified by the letter or spirit of the Constitution and the Bill of Rights.

What the Trump administration argues in this case is that it might suffer the “irreparable harm” of not having been able to summarily sentence people to removal to dangerous third countries or to foreign prisons, and to do so without judicial review. The argument is nonsensical, if only because the Constitution clearly requires:

• that no person be subject to summary sentencing;
• that no person be denied due process;
• that no person be subjected to “cruel and unusual punishments”;
• that the right to redress never be abridged.

Justice Sotomayor notes specific strict limitations placed on “third country removals”, beyond the four foundational principle listed above, writing:

Third-country removals are burdensome for the affected noncitizen, so Congress has sharply limited their use. They are permissible only after the Government tries each and every alternative noted in the statute, and determines they are all “impracticable, inadvisable, or impossible.”

She adds, importantly:

Noncitizens facing removal of any sort are entitled under international and domestic law to raise a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. Article 3 of the Convention prohibits returning any person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The United States is a party to the Convention, and in 1998 Congress passed the Foreign Affairs Reform and Restructuring Act to implement its commands. The Act provides that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”

This is not something Pres. Trump or the Supreme Court can simply ignore or override. Article VI of the Constitution is clear that ratified treaties “shall be the supreme Law of the Land”—equivalent in authority to the Constitution. Judges are bound by such treaties, including “the Judges in every State”.

Astonishingly, Sotomayor notes, the Department of Homeland Security not only ignores the letter and spirit of the Constitution, as well as multiple court orders prohibiting unreviewable and/or extralegal third-country removals; it has established policy that “prohibits officers from providing the noncitizen with an affirmative opportunity to raise her fear of torture”. So, we must again recall the language of the First Amendment’s redress clause:

Congress shall make no law… abridging… the right… to petition the Government for a redress of grievances.

As we have written in our piece about the limitations of Presidential authority, the words “Congress shall make no law…” mean that no Executive action serving the prohibited ends can be lawful, and no Judicial ruling should pretend otherwise.

Noting the overtly bad faith approach the administration has taken to the clear language of the law and of court orders, Justice Sotomayor reports:

At a subsequent hearing, an attorney for the Government claimed DHS had not violated the TRO because the Department of Defense had conducted the removals. According to the agreement that governs the relationship between DHS and the Department of Defense at Guantanamo Bay, however, DHS “has legal custody” of noncitizens detained at Guantanamo Bay “and is responsible for the custody of detained aliens for administrative purposes related to immigration law violations.” ECF Doc. 99–1, p. 2. DHS also remains “responsible for the [noncitizens’] physical custody” at Guantanamo Bay, and for any immigration-related “transfers, releases, and removals.”

It is clear the Trump administration is violating the Constitution of the United States, as well as federal statutes, international treaties with binding Constitutional power, and multiple federal court orders. The Supreme Court has this information, and does not need to wait for further hearings in order to obtain it.

The Court has a duty to prevent irreparable harm, and to ensure that due process rights, including the right to redress and the right against cruel and unusual punishments, be upheld, in all cases, for all people. Anything less is an abdication of the duty to uphold those rights for all Americans.