The Trump administration returned to the Supreme Court on Tuesday in the case of eight men it seeks to deport to South Sudan, asking the justices to make clear that an order they issued on Monday was intended to apply to the group.
The clarity was apparently needed because the Supreme Court on Monday had issued only a brief order letting the government send migrants to countries with which they have no connection without giving them a chance to argue they would face torture. The court provided no explanation of its reasoning.
The Supreme Court’s order paused an injunction issued by Judge Brian E. Murphy, of the U.S. District Court in Boston, who had forbidden the deportations of all migrants to third countries unless they were afforded due process.
Soon after the Supreme Court ruled, lawyers for the men filed an emergency motion with Judge Murphy asking him to continue blocking the deportations of eight men currently held in Djibouti.
In a brief order Monday night, the judge denied the motion as unnecessary. He said that he had issued a separate ruling last month, different from the one the Supreme Court had paused, protecting the men in Djibouti from immediate removal.
That left the fate of the men unclear, as President Trump and a top aide cried foul.
Judge Murphy “knew absolutely nothing about the situation” and was “absolutely out of control,” Mr. Trump wrote on social media.
Stephen Miller, the White House deputy chief of staff and Mr. Trump’s top immigration adviser, said, “Expect fireworks tomorrow when we hold this judge accountable for refusing to obey the Supreme Court.”
D. John Sauer, the solicitor general, told the justices on Tuesday that the judge’s latest order was “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.”
He asked the court for an immediate stay “to make clear beyond any doubt that the government can immediately proceed with the third-country removals of the criminal aliens from Djibouti.”
Though the judge’s initial ruling applied to many migrants, it captured public attention in May when the government loaded eight men onto a plane said to be headed to South Sudan, a violence-plagued African country that most of them had never set foot in.
Their flight landed instead in the East African nation of Djibouti, where there is an American military base, and they have been held there ever since. Judge Murphy ruled that the men must be given access to lawyers and a chance to challenge the government’s plan to send them to South Sudan.
The men, who have all been convicted of serious crimes in the United States, have been detained at Camp Lemonnier, the military base, for the past 34 days. According to court filings, they spend almost all of their time inside a modular, air-conditioned container that the military usually uses as a conference room. Under constant guard, they wear shackles around their ankles, except when showering, using the bathroom or meeting remotely with their attorneys, a member of their legal team said.
Before coming to the United States, they hailed from countries around the world — Vietnam, South Korea, Mexico, Laos, Cuba, Myanmar. Just one is from South Sudan. Three of the eight men have been interviewed as part of the due process required by Judge Murphy’s second order, according to a court filing by their attorneys. Another two interviews, an attorney representing the detainees said, were scheduled for Tuesday.
Mr. Sauer told the justices that the Judge Murphy’s order had resulted in “an unstable and dangerous situation” at the base, worsened by recent military action in the Middle East.
Mr. Sauer also suggested that the Supreme Court might want to rein in Judge Murphy. “This court may wish to direct the district court not to issue further injunctions in this case without first obtaining preclearance from this court,” he wrote. “In the alternative, given the lower court’s conduct, this court may consider ordering that the case be reassigned to a different district judge.”
The administration’s motion on Tuesday seeking clarification of Monday’s order was at least partly a consequence of that order’s lack of reasoning. In a lengthy dissent, Justice Sonia Sotomayor, on the other hand, seemed to endorse Judge Murphy’s understanding of his two rulings.
“The district court’s remedial orders are not properly before this court because the government has not appealed them,” she wrote.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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