In polite but firm judicial language, the Supreme Court made it clear on July 3 that Massachusetts federal district court Judge Brian Murphy wouldn’t get away with dodging the stay the court had issued against him in an important immigration case.
According to the court, Murphy is bound by the prior order and cannot “enforce an injunction that our stay rendered unenforceable.”
Murphy’s misbehavior comes as no surprise given that he’s one of President Joe Biden’s “Midnight” judges.
Sen. Chuck Schumer, D-N.Y., rushed him through the Senate during its lame-duck session after the 2024 election, with Murphy’s nomination barely confirmed on Dec. 2 by a 47-45 vote. Even Sen. Susan Collins of Maine, arguably the most liberal Republican in the Senate, voted against Murphy because he is so radical.
The case in question involved a preliminary injunction issued by Murphy preventing the removal of criminal illegal aliens to third-world countries—in this case, South Sudan.
On June 23, the Supreme Court granted the U.S. Justice Department’s emergency request for a stay in Department of Homeland Security v. D.V.D. The court’s order, issued over the entirely predictable and banal dissent of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, stayed Murphy’s April 18 injunction, “pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such writ is timely sought.”
Even a first-year law student would understand that meant that Murphy could no longer enforce his injunction or take any actions to stop the government from removing deportable illegal aliens to third countries. But apparently not Brian Murphy.
As the Justice Department wrote in a motion filed the very next day, Murphy issued an order just hours after the Supreme Court’s order, stating that his related ruling enforcing the injunction “remains in full force and effect … not withstanding todays[sic] stay of the Preliminary Injunction.”
The “related ruling” was a second order Murphy issued on May 21 that clarified the April 18 injunction order and remedied what Murphy claimed were supposed “violations” of his April 18 injunction by the government in attempting to remove criminal aliens to South Sudan.
Murphy claimed the Supreme Court’s stay applied to his April 18 order but didn’t apply to his May 21 order, and that the government could still not move any aliens to South Sudan.
The Justice Department’s motion called Murphy’s action an “unprecedented defiance of this Court’s authority.” This, the government continued, is a “lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the Executive’s lawful efforts to effectuate third-country removals.”
When an appellate court stays an injunction, the DOJ pointed out, the injunction cannot be enforced because the court that issued it has been divested of its judicial authority to enforce that order. But Murphy simply ignored that and told the government it had to comply with his injunction.
Murphy’s misconduct was the equivalent of the Wizard of Oz telling Dorothy, “Pay no attention to the man behind the curtain!” In this case, the man behind the curtain was the Supreme Court.
In response to the Justice Department’s motion for clarification, the man behind the curtain (the Supreme Court) issued the July 3 order, reiterating that it meant what it had said and that Murphy’s power to enforce his injunction is null and void.
The Justice Department also asked the Supreme Court to consider taking two other actions:
- Directing Murphy “not to issue further injunctions in this case without first obtaining pre-clearance from this Court” or
- “ordering that the case be reassigned to a different judge.”
Either action would have been appropriate given Murphy’s misconduct, but the court declined both. But that declination was based on the Supreme Court “‘assuming as we do’ that the District Court will now conform its order to our previous stay and cease enforcing the April 18 injunction through the May 21 remedial order.”
Based on that assumption, the court said that “we have no occasion to reach the Government’s other requests for relief.” In other words, the court is assuming that Murphy will now quit defying the Supreme Court.
As one would expect, both Sotomayor and Jackson issued a defiant dissent—which the majority dismissed, despite its “provocative language,” since “a claim that a lower court has failed to give effect to an order of this Court is properly addressed here.”
Interestingly, Kagan did not join that dissent, even though she had dissented from the court’s original grant of the stay. Instead, she concurred in this “clarification,” stating that while she would have denied the original request for the stay, she could “not see how a district court can compel compliance with an order that this Court has stayed.”
One final note on the substantive merits of this case. In issuing his injunction, Murphy misinterpreted the applicable immigration statute, ignoring language specifically giving the government the ability to “disregard” the request of an illegal alien to be returned to his native country when it is “impracticable, inadvisable, or impossible” or when it would be “prejudicial to the United States.”
Making that determination remains totally within the discretion of the secretary of the Department of Homeland Security, and there is no provision for it to be second-guessed by a judicial ideologue.
And who are the criminal aliens that Sotomayor and her cohorts are so intent on protecting in this case?
They’re aliens convicted of homicide, armed robbery, assault, kidnapping, battery, larceny, drug trafficking, and sexual assault, including of children.
Those are the new heroes of the Left.
Hans von Spakovsky is the manager of the Election Law Reform Initiative and a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Reprinted with Permission from The Daily Signal – By Hans von Spakovsky
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.
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