Judge Brian Murphy of Boston federal court sought to continue enforcing an injunction the high court had nullified.
The Supreme Court has bluntly instructed a Biden-appointed federal district judge in Boston that it meant what it said when it vacated his attempt to write new immigration law under the guise of issuing an injunction against the Trump administration deportation of criminal aliens to “third countries.”
I wrote about the case last weekend. In this context, the term “third countries” refers to countries that removable aliens have neither asked to be deported to nor had prior ties of citizenship, nationality, birthright, residence, or travel. Congress’s immigration laws unambiguously provide that, if deportation to a country to which an alien wishes to be sent or has such prior ties is not practicable (because, for example, such countries refuse to accept the alien or there are fears of persecution), the government may deport to any country that will accept the alien.
In the Boston case, the government was seeking to deport aliens to South Sudan. That is a strife-torn, third world country, but that happenstance does not, in and of itself, give rise to a fear of persecution or torture. Moreover, to the extent the State Department has determined that aliens are not likely to be tortured or persecuted in a country, the Supreme Court has held that such judgments are for the political branches and will not be Monday-morning-quarterbacked by the judiciary. (See Chief Justice John Roberts’s unanimous opinion in Munaf v. Geren (2008).)
The judge in question, Brian Murphy, attempted to impose a novel procedure mandating that the government give an alien 15 days’ notice prior to deportation to a third country, to provide the alien time to seek protection against removal on grounds of fear of persecution or torture. That was the substance of an injunction that the judge issued on April 18.
It is not enough to say that Congress has supremacy over the formulation of immigration law, including deportation procedure, and has not legislated a procedure of the kind Judge Murphy ordered. Congress has also divested the district courts of jurisdiction over most matters pertaining to removal. Under immigration statutes, removal is handled by the Justice Department’s immigration tribunals (an executive branch immigration “judge” and a potential appeal to the Bureau of Immigration Appeals), followed by a one-time appeal on matters of law to a judicial tribunal — specifically, a circuit court of appeals, not a district judge.
After issuing his lawless April 18 injunction, Judge Murphy determined that the Trump administration had violated it (which may well be true); on May 21, he issued what he styled an “order on remedy,” dictating new procedures that the administration was to follow. Meantime, the Trump Justice Department went to the Supreme Court to seek a stay of the April 18 injunction. As I explained last weekend, the justices granted that stay on June 23 in a curt per curiam order — over the objection of the Court’s three progressives (Justice Sonia Sotomayor’s dissent was joined by Justices Elena Kagan and Ketanji Brown Jackson).
What happened next borders on insubordination.
Even though the Supreme Court had stayed — and thus nullified — Judge Murphy’s injunction, he issued an order, just hours after the Court’s order, asserting that his May 21 “order on remedy” “remain[ed] in full force and effect.” This is indefensible. Under settled law, as the Court relates in today’s order, when a superior court stays a lower court’s injunction, that injunction is divested of enforceability. Murphy was using the threat of civil contempt attendant to his May 21 order as a smokescreen to try to compel the administration’s compliance with the April 18 order that the Supreme Court had ruled was unenforceable.
The justices have essentially told Murphy to knock it off. The majority diplomatically says it “assumes” that “the District Court [Murphy] will now conform its order to our previous stay and cease enforcing the April 18 injunction through the May 21 remedial order.” With that assumption, the justices assume they need not take further action against Murphy. They take pains, however, to add at the end of today’s order:
If the Government wishes to seek additional relief in aid of the execution of our mandate, it may do so through mandamus. See In re Sanford Fork & Tool Co., 160 U. S. 247, 255 (1895) (explaining that any matter “disposed of by” decree of this Court must be carried “into execution, according to the mandate,” by the courts below).
Writs of mandamus are rare. A superior court rarely threatens one, much less issues it, because it implicitly means the official against whom it is directed is in clear violation of the law or refusing to perform a known, mandatory legal duty.
Unsurprisingly, today’s order prompted another strident dissent by Justice Sotomayor, joined by Justice Jackson. To her credit, Justice Kagan declined to join it. In a brief, separate opinion, she observed that, while she joined the dissent from the Court’s June 23 order and would not have stayed Murphy’s April 18 order,
a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed. . . . Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification. [Citation omitted.]
This is exactly right.
I would simply reiterate what I said last weekend. I think our government should avoid sending removable aliens to countries that are failing or authoritarian. That has not been the government’s practice pre-Trump, so there was no urgency for Congress to address it. If the current administration is going down this path, then Congress should explore some guidelines — with the understanding that, having violated our laws, removable aliens are principally responsible for the straits they are in; if their conduct is so egregious that other countries don’t want to take them, that shouldn’t be an advantage they can leverage into residence in the United States.
However one comes out on that, though, it is a problem for Congress to address. A district judge in Boston has no business legislating new removal procedures.