Congress does, and the Supreme Court is merely demanding that judges follow it.
Congress does, and the Supreme Court is merely demanding that judges follow it.
N o, contrary to the garment-rending of the progressive media, the Supreme Court hasn’t green-lighted the Trump administration’s deportations of removable aliens to third countries to which the aliens have no ties. It is Congress that approved that process by enacting a controlling statute that explicitly allows it. Instead, on Tuesday, a majority of the justices declined to enforce an injunction against such removals, issued by an incorrigible Biden-appointed Boston judge, who lacks jurisdiction over removals yet persists in dictating how they are to be carried out — this time backed by a wayward First Circuit appeals panel.
Let’s back up.
As I detailed last year, Judge Brian Murphy of the federal district court in Massachusetts has been trying to rewrite immigration law to provide new due process rights to removable aliens — i.e., aliens who have no right to be in the United States, and who have already been ordered removed through a congressionally prescribed process, often because they entered our country illegally, committed crimes while here, or both.
To recap what I’ve outlined on other occasions, in 1996, Congress stripped the district courts — meaning jurists such as Judge Murphy — of jurisdiction over removal issues. (See Section 1252(a)(5) of immigration law.) The reason for this is straightforward: If an alien has been adjudged removable — often because the alien entered illegally, committed crimes here, or both — it is in the national interest of the United States to get the alien out of our country. That it happens to be in the removable alien’s personal interest to remain here, at least until a relocation country he finds hospitable has been found, is not entirely irrelevant, but it is decidedly secondary.
This is why it is for Congress, not judges, to legislate removal law. Deportation implicates foreign policy and national security. In our constitutional system, such concerns are supposed to be resolved by elected officials who are politically accountable to the public whose safety and prosperity are at stake. Courts are not politically accountable and have no foreign policy or national security responsibilities; perforce, some judges — especially progressive judges — tend to elevate the alien’s interests as if they had equal or greater standing vis-à-vis the public’s interests. Congress properly suppressed this tendency by (a) denying district judges the authority to interfere with removal and (b) channeling to appellate courts a narrow judicial review for removable aliens — who, it bears emphasizing, are not Americans, have flouted our laws, and do not have a robust array of Bill of Rights protections.
This did not leave aliens without rights. Congress provided that such aliens may challenge removal in two Justice Department tribunals: what’s confusingly called an “immigration court,” in which a DOJ lawyer (called an “immigration judge”) presides, and then a review by DOJ’s Bureau of Immigration Appeals. After that, there is what’s supposed to be a one-time appeal to an actual judicial court — the Circuit Court of Appeals (in whichever circuit the case arose); the circuit may resolve disputed legal issues but must generally accept the fact-finding of the DOJ courts. From there, appeal to the Supreme Court is possible but rarely granted.
Hence, Judge Murphy should have nothing to do with removal cases. Alas, as a progressive who appears to be auditioning for a higher court nomination in the next Democratic administration, he has joined the left’s resistance to Trump immigration enforcement policies. Murphy was barely confirmed, garnering the votes of just 47 senators during the lame duck session after the 2024 election. How was it enough to get just 47 out of 100? Well, a number of Republicans — including then–Senators JD Vance and Marco Rubio — didn’t show up to vote, prioritizing preparation for the executive responsibilities they’d not assume for another six weeks over the most critical congressional duty they had at the time, vetting lifetime judicial appointments. (As the midterm campaign heats up, I look forward to hearing the vice president and secretary admonish us that unless voters keep the Senate in Republican control, the bench will be stocked with radical lefties like Murphy.)
The Trump third-country removal policy is controversial. In an immigration statute (Section 1231(b)), Congress has prescribed a formula regarding countries to which a removable alien may expelled. There has to be a formula because there are complications — it’s not as simple as “just send him back from whence he came”; other countries get a vote. Some countries are hostile to the U.S. and won’t cooperate; some refuse to take their own citizens back because they are criminals; some are countries to which our government cannot responsibly (or legally) send removable aliens because they may be subjected to torture or persecution; some are unstable war zones or under totalitarian rule, so it would be better to find an alternative even if it’s not technically illegal to send an alien there.
Therefore, in circumstances when it’s not possible to quickly turn the removable alien back to the country from which he arrived aboard a vessel or aircraft, the statute’s “alternative countries” formula provides, in descending order, that the alien should be sent to a country to which he prefers to go if that country will take him; the country of which he is a citizen, subject, or national; the country of his birth; a country in which the alien has a residence; or finally:
A country with a government that will accept the alien into the country’s territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible.
Notice, Congress did not say the government could use the final alternative only if the alien does not object. The policy priority in the statute — a priority Congress was fully within its authority to adopt — is that the removable alien must be deported, not that the alien must be satisfied with the outcome. The United States government is not a travel agency. The upshot of the statute is that, while the government should make a good faith effort to accommodate the alien’s preferences and factor in his heritage, it is in the American public’s interest that the alien be deported.
True, by codified treaty obligations, the alien cannot be sent to a place where the government has reason to believe he’d be singled out for torture or similar abuse; but aside from that, when there are no better removal options, there is no legal bar to sending the alien to any country that will take him, regardless of whether the alien objects. It never seems to dawn on those who find this intolerably unfair that the removable alien did not give us a chance to object to his illegal entry or commission of crimes. And importantly, on the matter of whether an alien is likely to be tortured or subjected to other persecution, that is for the executive to decide: In Munaf v. Geren (2008), a unanimous decision written by Chief Justice John Roberts, the Supreme Court held that the judiciary may not second-guess the State Department’s conclusion that an alien can safely be sent to a particular country.
Now, prior to Trump’s non-consecutive second term, administrations of both parties either resisted the last resort “third country” option or, when invoking it, took pains to deport aliens to unobjectionable countries. But in loosely (if at all) using the third country option, these administrations were making a political decision, not a legal one. (Of course, progressive Democratic administrations believed the better option was to allow removable aliens to remain in the United States; but that is not a faithful execution of Congress’s law which, again, calls for removable aliens to be deported.)
In stark contrast, the Trump policy is to invoke the last resort. Is the administration heedless of risk? Well, to be sure, Trump’s execution of the policy seems to consciously favor sending removable aliens to unstable and/or authoritarian countries — e.g., South Sudan, the Democratic Republic of Congo, Equatorial Guinea, Eswatini, Nicaragua, Salvador, etc., many of which are poor and happy to take American funds in exchange for accepting aliens no one else wants. This undoubtedly adds to the in terrorem effect of Trump’s overall approach to immigration enforcement, designed to discourage aliens from illegally entering our country in the first place.
Being coldly, cynically calculating could have a political cost, but there’s nothing illegal about it. I am an immigration hawk and I don’t like it. I believe there will be blowback that undermines immigration enforcement when Democrats are in power again. And I would prefer that my country not send even alien criminals to hellholes — although I object at least as much to court decisions that require the government to release removable aliens on bail if a country willing to take them cannot be found after six months of detention. (See Zadvydas v. Davis (2001), a 5–4 decision written by Justice Stephen Breyer and joined in by the other progressive justices on what was then a more left-leaning Court — about three months before 9/11, when nearly 3,000 Americans were killed by 19 aliens at liberty in our country even though most were in violation of our immigration laws.)
In any event, what I do or do not like is beside the point because I’m not Congress. And neither is Judge Murphy.
That hasn’t stopped him from attempting to impose his will by enjoining the administration from removing aliens to third countries unless Trump officials adopt the new Murphy’s Law of due process — advance notice of the government’s intent to remove the alien to a third country and an opportunity to object on fear-of-torture grounds. Now, you may think these are reasonable prescriptions; they certainly strike me as prescriptions Congress should consider in amending the removal statute. But (a) Congress has not mandated these safeguards, (b) Murphy should not even be involved in removal questions, and (c) the judge’s implication is that the alien has a constitutional due process right not to be removed to a country in which he fears being persecuted even though, by sending the alien to that country, the administration is effectively saying it believes there will be no such persecution — a decision the Supreme Court says is for the executive, not a court or a removable alien, to make.
Even after the Supreme Court nullified an injunction Murphy issued in April, the judge tried to enforce it anyway — on the theory that the Trump administration had violated it before the justices stayed it. That prompted a curt rebuke from the Court — including a concurrence by Justice Elena Kagan, a progressive who had initially voted with the minority to uphold Murphy’s injunction but who felt constrained to say, “I do not see how a district court can compel compliance with an order that this Court has stayed.”
Murphy has brazenly continued with the project nonetheless. Earlier this year, rather than address individual cases that had been strategically brought in his very blue district by progressive groups, he certified a class of removable aliens. Sound familiar? It should. Just a term ago, in Trump v. CASA, Inc. (2025), the Supreme Court invalidated nationwide injunctions, a wayward vehicle by which activist district judges were undertaking to dictate policy for the entire nation rather than simply dispose of the claims made by the parties to the lawsuits before them. In concurring, Justice Samuel Alito (joined by Justice Clarence Thomas) presciently feared that willful judges could try to circumvent the CASA decision by certifying dubious classes of claimants and then, under the guise of “class relief,” issuing what would effectively be nationwide injunctions.
Plainly, Judge Murphy was taking notes. After certifying his class of removable aliens, he purported to endow them with class relief: his inflated vision of due process. And when the Trump Justice Department appealed, a three-judge panel of the First Circuit led by two other Biden appointees — surprise! — affirmed his ruling. (There is a reason progressive activists like to file their lawsuits in the First Circuit, headquartered in Boston, all of whose active judges were Democratic appointees until a single Trump appointee joined the court last year.)
It was Murphy’s latest gamesmanship that the Supreme Court put on ice this week. I recently contended that the category of what I call “Trump cases” are the ones most likely to break down under ideological lines, dividing the Court’s six conservatives and its three progressives. Sure enough, that’s how this one went — Justice Kagan and her fellow progressives, Justices Sonia Sotomayor and Ketanji Brown Jackson would have kept Judge Murphy’s ruling in place while the case proceeds. While you’d hardly know it from the press coverage, though, the Court’s majority has not invalidated Murphy’s decision. Instead, the justices stayed it — meaning that the Trump administration can continue its third-country removal practices for now, while we await the Court’s resolution of whether Murphy and the First Circuit got it right. Moreover, the Court fast-tracked the case, in which it will hear arguments in December — warp speed as these things go.
I’d bet the ranch that the Court will rule against Murphy (again), not because he’s wrong on the policy but because the policy is none of his business.
In its order staying Murphy’s ruling, the Court directed the parties to address whether the district judge had jurisdiction over the aliens’ removal claims. In my opinion, he did not. He and the First Circuit strain to get around the jurisdictional bar by rationalizing that an order of removal is not really an order of removal unless it alerts the alien to what countries the government may deport him. For this proposition, they selectively mine a regulation (Section 1240.12) that says the immigration judge, in issuing a removal order, must identify “countries to which the alien’s removal may in the first instance be made, pursuant to [the above quoted Section 1231(b)].” I’ve put that in italics to highlight that this regulatory language obviously refers to the first alternatives in Congress’s formula, which I outlined above. The regulation, in mentioning the formula’s “first instance” countries (e.g. country of preference, of nationality, of residence), does not address our so-called third country situation — i.e., the scenario in which, because none of the preferred alternatives is workable, our government has to find another country willing to take the alien.
As if there were any doubt about that, the regulation continues:
In the event that the Department of Homeland Security is unable to remove the alien to the specified or alternative country or countries, the order of the immigration judge does not limit the authority of the Department of Homeland Security to remove the alien to any other country as permitted by section [1231]. [Emphasis added.]
Congress did not require a country to be specified in a removal order because, clearly, it’s not always possible to know what the relevant country will be when removal is initially ordered. Sometimes finding a willing country is hard. The cited regulation is not inconsistent with that cold hard fact. Even if it were, a regulation cannot countermand a statute. A removal order is still a removal order even if the country of destination is not specified. And Judge Murphy had no authority to meddle in the execution of removal orders.
The Court also directed the parties to address whether Murphy had authority to order “classwide declaratory relief,” among other things, despite subsection (f)(1) of the aforementioned Section 1252 — the statute that strips district courts of removal jurisdiction. Section 1252(f)(1) expressly provides that only the Supreme Court has the jurisdiction or authority to restrain the operation of the removal provisions, regardless of how the parties or the lower courts describe the nature of their lawsuit (e.g., “class action”).
The lower courts tried to get around this statutory bar by the facile distinction that what Murphy ordered was declaratory relief, whereas Section 1252(f)(1) explicitly bars injunctive relief (by using the word “enjoin”). But as the Justice Department countered, Section 1252(f)(1) is broader than that, forbidding any lower court actions that “restrain the operation” of the removal laws. Furthermore, the lower court’s construction of the statute runs headlong into (a) Justice Alito’s aforementioned warning that activists judge might try to issue invalid nationwide injunctions by calling them something else; and (b) California v. Grace Brethren Church (1982), in which the Supreme Court held that declaratory relief is unavailable under a statute that expressly prohibits injunctive relief.
Due process is also at issue: Must the removable aliens receive notice and an opportunity to be heard before being sent to a so-called third country? Congress has given them no such right; and what claim on constitutional due process can plausibly be made by aliens (a) who have no right to be present in the U.S., (b) whose presence violates our laws, (c) whose expulsion Congress has directed, (d) for whom no better removal option is available, and (e) who may lawfully be deported to third countries under the Section 1231 formula?
The First Circuit cited no case requiring Murphy’s notice mandate. Rather, the panel claimed that a right to prior notice was “implicit” in a 76-year-old Supreme Court precedent, Mullane v. Central Hanover Bank & Trust (1940) — a case that has absolutely nothing to do with immigration, removal, or the rights of non-Americans illegally in the United States (it was about whether, before disposing of financial assets, a trust company failed to give sufficient notice to Americans who were beneficiaries of a trust ). That’s rich: In refusing to heed the Supreme Court’s Grace Brethren Church bar against declaratory relief when a statute prohibits injunctions (discussed in the last paragraph), the First Circuit rationalized that the precedent was of “limited relevance” because it did not involve “the immigration-law context.”
Judge Murphy and the First Circuit are not applying Congress’s or the Constitution’s standards. They are manufacturing from whole cloth new rights for removable aliens — non-Americans who are adjudicated to be removable only after being given the benefit of an elaborate legal process. The Supreme Court has not blessed Trump’s third-country practices; I predict the justices will underscore that Congress could outlaw them tomorrow. But I also suspect the Court will instruct district judges to stay in their lane, which has no removal detour.