If you're a diligent observer of federal challenges to Trump administration policies, you know the administration is losing more than it's winning. You might have also concluded that Memorial Day weekend and its aftermath were a particularly challenging stretch for the administration, which was blocked from ending Harvard University's ability to enroll foreign students and then from terminating New York City's congestion pricing program, as litigation in both matters continues.
But those victories conceal a growing cancer on the rule of law: the seeming ease with which government lawyers and/or officials under legal and ethical obligations to adhere to and execute on court orders are instead flouting them.
And I'm not just referring to the two best known examples: the litigation over the Trump administration's deporting hundreds of Venezuelan men to El Salvador, where they are now imprisoned, under the Alien Enemies Act, and the continued fight over the government's efforts to "facilitate" the release and return of Kilmar Abrego Garcia, where the government's gamesmanship and seeming circumvention of court orders have led District Judges James Boasberg and Paula Xinis, respectively, to entertain contempt findings.
Instead, I'm thinking of a case that isn't yet part of the national discourse but should be. Nearly two months ago, another district judge, Brian Murphy, first forbid immigration authorities from sending any immigrant with a final deportation order to a country not listed in that order unless and until two things happen: The immigrant must "be told they are going to be deported to a new country before they are taken to such a country, and be given an opportunity to explain why such a deportation will likely result in their persecution, torture, and/or death." That sounds simple enough, right?
Yet while Murphy extended his initial, temporary order into a long-term injunction, he's been forced to reiterate its scope not once but three times.
First, after plaintiffs' counsel caught wind that four immigrants were sent to Guantanamo Bay and then deported to third countries without the notice and opportunity to be heard ordered by Murphy, the Department of Homeland Security told the court it did not direct those removals by the Defense Department, DHS personnel were not involved, and in any event, DOD was not a defendant to the suit. (The plaintiffs in this case are a group of immigrants who have been sent or could be sent to countries other than those listed in their final removal orders or otherwise identified in writing in their cases.)
While expressly reserving judgment on the veracity of the government's representation, Murphy ordered that "removals from Guantanamo Bay to third countries have been executed by the Department of Defense without the Department of Homeland Security’s direction or knowledge"; that once DHS takes custody of an immigrant, it may not "cede custody or control in any manner that prevents [that immigrant] from receiving the due-process guarantees" outlined in his prior order.
Then, roughly a week later, plaintiffs' counsel told the court they learned — from media reports and lawyers for three individual immigrants — that DHS had imminent plans to deport undocumented immigrants who are not citizens of Libya and Saudi Arabia to those countries "without prior written notice and a meaningful opportunity to raise fear-based claims." Again, the lawyers sought emergency relief — and once again, Murphy "clarified" his order, writing, "If there is any doubt — the Court sees none — the allegedly imminent removals ... would clearly violate this Court’s Order."
And most recently, last week, the plaintiffs' lawyers returned to court with a now-familiar tale: Lawyers for two individual immigrants, neither of whom is Sudanese, had learned their clients would be deported, this time to conflict-strewn South Sudan, within hours. By the time Murphy held a hearing the next day, that flight had already landed, reportedly in Djibouti. Murphy told the government that by providing less than 24 hours of notice and "zero business hours' notice," it had "unquestionably" violated his order.
Murphy ordered last Wednesday night — and has since refused to reconsider or pause his order — that, whether back in the States or in Djibouti, the administration must provide each immigrant with a so-called "credible fear" interview with all the hallmarks of meaningful due process, including access to counsel and translation services. But as of Monday night, counsel had not even received phone access to their clients. By contrast, the Justice Department has now begged the Supreme Court to block Murphy's orders, which it describes as "wreaking havoc" with the administration's efforts to send undocumented immigrants who have committed "heinous" crimes to "third countries that have agreed to accept them."
In the administration's retelling, Murphy's alleged usurpation of executive authority — and not their own noncompliance with court orders — has created a purported judicial emergency. But what's most notable isn't just their attempt to justify past conduct. It's the promise, as exemplified in an X post by White House press secretary Karoline Leavitt quote tweeting a White House thread on the 8 men originally believed to have been on the South Sudan flight, that they'll "continue to deport these monsters to keep America safe," a promise that the White House believes will assuage MAGA moms and others in Trump's base.
Of course, the supposed trade-off between due process and safety is a false one. An America in which the executive branch dodges and disobeys court orders may give some the illusion of security, but it's not safe for any of us.
