Photo by David Geitgey Sierralupe from Eugene, Oregon, Creative Commons Attribution 2.0 Generic license.

Eight months and three sentences.

That's all it took for the United States Supreme Court to go from rubber-stamping every executive order to forcing the president to torture legal immigrants.

Last night, without a hearing or any semblance of an opinion explaining their actions, six Supreme Court justices upended American immigration policy and effectively said the Department of Homeland Security is legally required to torture legal would-be immigrants by caging them up in inhumane conditions in Mexico.

Their reasoning? Well, because Trump said so, I suppose.

Less than two weeks ago, a Trump-appointed judge issued an absolutely batshit decision in Biden v. Texas, a case challenging the Biden administration's refusal to keep asylum seekers from Central and South America in tents on the other side of the US-Mexico border.

And now, ignoring decades of precedent and its own decisions from the last four years, the highest court in the land has co-signed one of the dumbest decisions ever to come out of a federal court — a decision that will doubtlessly result in deaths.

Like ACLU of Massachusetts Legal Director Matthew Segal tweeted, it's basically "Korematsu, except the Executive Branch tries to end internment and the Judicial Branch says no you have to do it."

If there's anyone left who doesn't recognize just how fucking abhorrent and dangerous the Roberts Court is, can you please raise your hand so we can adequately ostracize you? tyia


WTF?

As most of us remember all too well, Donald Trump spent four years doing everything he and Immigration Obergruppenführer Stephen Miller could think of to screw over non-white immigrants.

One of the most disgusting policies of all was the "Remain in Mexico" policy Trump's Department of Homeland Security came up with, also called the "Migrant Protection Protocols." Under this policy, asylum seekers — who, by definition, are legal immigrants trying to escape horrific conditions in their home countries — were forced to live in inhumane conditions in tent cities in northern Mexico. Some 70,000 would-be immigrants who arrived at the southern border were forced back to Mexico under Trump

Unsurprisingly, these makeshift refugee camps are full of violence, crime, and disease. Like the Ninth Circuit found in an earlier case, "Uncontested evidence in the record establishes that non-Mexicans returned to Mexico [...] risk substantial harm, even death, while they await adjudication of their applications for asylum." And not only that — around 30,000 people we forced to stay in Mexico had their asylum cases denied ... because they didn't make it to their court hearings in the US.

When Biden took office, he immediately stopped forcing people into the camps. It took a little longer for the administration to relocate everyone, but they did it. And in June, DHS found the policy did not "adequately or sustainably enhance border management" while leaving tens of thousands of people without "stable access to housing, income, and safety" and "result[ed] in the abandonment of potentially meritorious protection claims."

This should have been the end of things. But this is the Bad Place, so here we are.

"Crime. Boy, I don't know."

Indicted Texas Attorney General Ken Paxton sued the Biden administration, because HOW VERY DARE the president have the audacity to treat poor immigrants like human beings?! And, because there's literally nothing Republicans accuse Dems of that they don't to themselves, Paxton did a little forum shopping and filed the case in the Northern District of Texas, Amarillo Division, where he was guaranteed to pull Trump appointee Matthew Kacsmaryk, who is known for his hatred of pretty much everyone who isn't a rightwing, cis, straight, white man, as the judge.

Unsurprisingly, Kacsmaryk acted like the brainwashed bigot he is, did exactly what Paxton told him to do, and told Biden he had to go back to treating people like animals. The opinion makes even less sense than you might think, arguing that a 1996 immigration law makes the COVID-rape camps mandatory under federal law. This is particularly fascinating, since Trump first enacted his migrant torture program in 2019, meaning every administration since Clinton had apparently broken the law and no one noticed. Fascinating.

In normal times and with a functional judiciary, Kacsmaryk's fuckery would be quickly overturned by the circuit court. But we live here in the dumbest timeline, so of course that didn't happen. A panel of three far-right judges on the Fifth Circuit denied the government's request to stay the decision.

On Friday, Samuel Alito, destined to go down in history as one of the worst Supreme Court justices in American history, put the Fifth Circuit's decision on hold until Tuesday, so he could refer it to the full Court.

"SCOTUS is sane, they would never be so partisan as to fuck with foreign policy in this way," said lawyers who refuse to acknowledge just how bad things are going to get with our 6-3 fascist majority. And then the Supreme Court's order came down. The entire decision reads:

The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-12, 17-26). Our order denying the Government's request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.

Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

That's it. No hearing. No opinion outlining their reasoning. Just three sentences to destroy tens of thousands of lives.

THIS IS FUCKING INSANE

I am a cynical bastard and I hate to be right about things that will result in murder, rape, torture, kidnappings, and COVID outbreaks. But here we are again.

Cases like this one, that go up to the Supreme Court without a full briefing on the merits and oral arguments, are part of what's called the "shadow docket." The shadow docket has become increasingly important in the last decade, despite all of the problems that come from the Court not having to explain its reasoning. Under the Trump regime, the shadow docket reigned supreme. Despite the fact that anyone could see Trump was constantly doing unconstitutional bullshit, SCOTUS ruled in Trump's favor in shadow docket cases 70 percent of the time.

It's almost impossible to overstate just how fucked up the Biden v. Texas ruling is. It ignores decades of precedent saying courts shouldn't mess with foreign affairs and immigration policy. (For more on the legal history involved, check out this piece from Vox.) And it's not just historical precedent — the Court is also ignoring its own decisions from the last four years, which essentially said that Trump had an Article II that said he could do whatever he wants with immigration.

For example, in the final Trump Muslim Ban case, John Roberts wrote that, "For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."

But, you see, these centuries-old doctrines simply cease to exist when a Democrat is elected president. Thus speaketh the Chief Justice.

And all of this is, of course, just setting aside the massive human rights violations the policy caused in the first place — and the fact that people will almost certainly be killed, raped, and kidnapped because of what these six justices decided in secret.

It's horrific in almost every way imaginable. And unless we grow some spines and stack the Court, this shit is going to continue as our very democracy crumbles around us.

I have nothing good to say about this one, sorry. Have some upset foster kittens.

For more kittens and legal rants, follow JLC on Twitter.

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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