The Supreme Court recently stayed a district court order which prevented the Trump administration from removing eight convicted criminals with immigration court orders of removal because they were being transferred to South Sudan. In fact, they already were in process and at a layover in Djibouti when the order came down and they have been there since. The District Court’s reasoning was that despite the multiple instances of due process afforded them, they were entitled to another hearing on whether removal to South Sudan would violate their rights under the Convention Against Torture.
After the Supreme Court stayed the injunction, clearing the way for them to be transferred to South Sudan, the District Court issued a second injunction, claiming that the SCOTUS stay did not affect the entirety of the case, and that a subsequent injunction as to “remedies” was not before SCOTUS when it ruled. I know I discussed this defiance in a media appearance, but I can’t find it.
It was a bad faith argument, and SCOTUS just rejected it (6-3) [correction – 7-2, Kagan wrote a concurring opinion] after the government filed a motion to clarify the prior ruling. From the Supreme Court ruling:
On June 23, we stayed the April 18 preliminary injunction pending disposition of any appeal and petition for writ of certiorari. Later that day, however, the District Court issued a minute order stating that the May 21 remedial order “remain[ed] in full force and effect,” “notwithstanding” our stay of the preliminary injunction. ECF Doc. 176. The only authority it cited was the dissent from the stay order.The Government has moved for “an order clarifying” our stay. Motion for Clarification. It argues that the stay of the April 18 preliminary injunction divests the May 21 remedial order of enforceability. Respondents argue that the District Court correctly understood the May 21 order to remain in effect—despite our stay of the preliminary injunction it purported to enforce—because the May 21 order effectively operates as a remedy for civil contempt. The motion for clarification is granted. Our June 23 order stayed the April 18 preliminary injunction in full. The May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.Despite the dissent’s provocative language, see post, at 6 (opinion of SOTOMAYOR, J.), a claim that a lower court has failed to give effect to an order of this Court is properly addressed here….
What was the “provocative” language by the self-described Wise Latina joined by KBJ? This, among other things:
Although Members of today’s majority have previously insisted that “this Court should follow established procedures” when granting emergency relief, A. A. R. P., 604 U. S., at ____ (ALITO, J., dissenting) (slip op., at 5), the Court now ignores its Rules to grant the Government its desired “clarification” immediately. The majority suggests (relying on an argument the Government did not make) that a remedy for civil contempt is not enforceable when the underlying injunction has been stayed.1 Ante, at 2. Perhaps that should be the rule, but the question appears to be a matter of first impression in this Court….In the end, the majority ignores the Court’s Rules for seeking emergency relief and creates new law on civil contempt, all to allow the Government to circumvent the appellate process with respect to an order it continues to defy….“In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.” Mine Workers, 330 U. S., at 312 (Frankfurter, J., concurring in judgment). This Court continues to invert those principles. Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. [Emphasis added.]
There’s a good reason the administration has SCOTUS on speed dial – The Resistance has federal district court judges on speed dial and has received numerous improper injunctions, sometimes in the dead of night or with the government not being permitted to respond.
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