According to The MV Times, the destination or fate of the 40 undocumented immigrants picked up by U.S. Immigration and Enforcement (ICE) on May 27 is still unknown, except for that of two who self-deported back to Brazil, and one who is challenging his detention. But here is what we do know about some destinations.
In mid-June, in an unsigned, single-paragraph opinion, the Supreme Court granted the Trump administration’s request to set aside a district court order halting the deportation of six undocumented immigrants to third-party countries. These were countries other than where the deportees originally came from. Federal Judge Brian Murphy held in April that the government must allow deportees time to argue in advance whether they feared persecution, torture, or death in those countries.
But the Supreme Court stopped his order. The case arose on what is called the Court’s emergency docket but what critics call its “shadow docket.” D. John Sauer, the Trump administration’s top lawyer, known as the solicitor general, who once served as Donald Trump’s personal attorney, filed an emergency appeal with the Supreme Court to stay Judge Murphy’s decision, which a majority did. The federal government may now send deportees to the country the administration identified as South Sudan (other countries have been identified as possible destinations for other deportees). We do not know who wrote the opinion, or which justices agreed with the decision.
Three justices joined a 19-page dissent Justice Sonia Sotomayor wrote. She contended that “apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled.” She noted that South Sudan is “a nation the State Department considers too unsafe for all but its most critical personnel.”
What exactly is the meaning of this one-paragraph ruling?
First, the decision did not touch on the merits of the case. The majority did not decide whether the Trump policy is legal or constitutional. Instead, their ruling was a procedural decision in that they returned the case to the lower courts for further argument. Second, the majority could have stopped the Trump policy, but decided not to do so. President Trump scored a temporary victory, as he has done in several other emergency filings with the Supreme Court since his inauguration last January.
Just what is this so-called emergency or shadow docket?
It’s important to point out that the nine justices issue decisions each year in about 55 to 65 merits cases. This term, they heard arguments in 62 merits cases, which are typically appeals from lower courts raising federal or constitutional questions. Attorneys for both sides submit lengthy written briefs to the nine justices, and then stand before them to answer questions as they set forth oral arguments. The process takes a lot of time, work, and expertise. Supreme Court decisions are final, and may be decided by a bare majority of five to four. Only a constitutional amendment or a superseding Supreme Court decision may overrule them.
The alternative route to the Supreme Court is through the emergency docket. These cases lack full arguments outlined above: no lengthy, written legal briefs, and no oral arguments before the justices. And no lengthy opinions outline the reasons for the justices’ decisions. In the past, many if not most emergency applications for relief came from death-row inmates seeking stays of execution.
The second Trump administration has set new records in its emergency appeals, and most of them have to do with immigration. According to the Associated Press, the administration has filed just short of one per week in the five months since Donald Trump was inaugurated on Jan. 20. As of this writing, that’s 23 emergency appeals. In all of President Trump’s first term, the administration appealed to the court 41 times, and the court granted the request in 28 of them. Contrast these numbers with the combined number of emergency docket appeals by both Presidents Barack Obama and George W. Bush: a mere eight.
Of the 23 emergency appeals decided so far, the Trump administration has prevailed in most of them. These include allowing the use of the 1798 Alien Enemies Act to remove undocumented immigrants, and ending the temporary protective status of Venezuelan nationals. The use of the act is also challenged in federal courts. Again, emergency rulings have been on procedural grounds, and President Trump usually prevails, at least temporarily, while the cases make their way through the lower courts.
The sheer number of the administration’s appeals to the court on its shadow docket reflects how President Trump uses his office, namely to “flood the zone” with numerous executive orders (164 by June 20) and emergency appeals. For Georgetown law professor Stephen Vladek, shadow docket cases are always “unseen, unsigned, and almost always unexplained.” That is the case here: no explanation, just a one-paragraph order signing onto the president’s immigration agenda. We, the public, remain in the dark.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years. He is the author of “American Constitutional History: A Brief Introduction” (second edition, 2022).
I believe this newspaper reported 20 ICE detentions from the island. Another 20 were on Nantucket. Because of MVTimes reporting, we were given info on 3 of the 20 Vineyard arrests. Part of the reason we do not know about the 17 others is because the people with information decline to speak to the press, understandably. Thats not Trump’s fault. I find it unlikely that any island undocumented immigrants will be sent to Sudan. When you admittedly have little to no information, I find it hard to understand the point of this local-impact essay, except as anti-Trump propaganda and exaggeration, which begins in the first sentence with the misleading “40 undocumented immigrants”. Self-deportation with families reunited in Brazil seems reasonable in many if not all ICE cases that impacted island families. I do hope these families can be reunited soon.
Trump is flooding the zone as you call it because district judges with no dog in the fight are ruling against him. When the Judiciary is corrupt or at minimum overstepping its authority it is good the Executive issues orders. The law that the writer so judiciously defends is broken and most of it in an attempt to stop Trump by all means. I await an article by the writer on the recent Brennan/Comey/Clapper revelations.
Thank you Jack, for a clear explanation of “shadow dockets”. This is a complicated issue. It deserves more than just dismissing efforts to keep heavily armed unidentified masked men from “disappearing members of our community. The usual tropes about corrupt judges, “broken” laws, and musings about propaganda intended to stop trump only deflect from the reality .. This is the United States– Habeas corpus is not “broken” it is firmly embedded in our constitution. The president, and presumably every one of those anonymous masked men swore an oath to “preserve, protect and defend the Constitution of the United States.” Sorry– profiling people in work vehicles,forcing them out of their vehicles and “arresting” them without warrants , cause or charges is not constitutional , or what America is about. Hauling them away with no judicial review and not informing the public or the families as to their whereabouts is reminiscent of authoritarian states that are active today or historically. The plan was to deport the worst of the worst– rapist, murderers pedophiles etc. Who knew there were so many on Martha’s Vineyard masquerading as hard working people with families ? For all we know, they could already be in deplorable prisons in war zones.
Every one of the people rounded up was either here illegally and or had also committed other crimes. They took 20 from MV and sorted them. The specifics of why each individual was detained were not immediately released to the public. However, ICE stated that among those detained in the overall operation on both islands were a documented gang member and a child sex offender. One individual detained was reportedly taken off-Island to a field office overseen by ICE in Burlington. They were not profiled all were probable cause. To assert that some of them are in deplorable prisons in war zones is hyperbole and defamatory. All were given habeas corpus and judicial review and ICE officers were not anonymous. They wore masks to prevent attacks on them in the future. (Not long ago I was forced to wear a mask for a great deal of time by this government by the way on nothing but a hoax.) None were sent to South Sudan. For all we know they might be sitting in the writers back yard. ”for all we know” is a wonderful journalistic trope used to be accusatory without facts.
Comments are closed.