Deporting people to countries where they might be tortured or killed? All good, according to the six GOP justices.
US Immigration and Customs Enforcement (ICE) agents knock on the door of a residence in Chicago on Sunday, Jan. 26, 2025. (Christopher Dilts / Bloomberg via Getty Images)
I always knew that Donald Trump’s unhinged cruelty toward immigrants would find aid and comfort among the Republicans on the Supreme Court. But I held out hope that his brazen violations of lower-court orders might give the Republicans pause before greenlighting Trump’s continued terror campaign against people who didn’t happen to be born here.
On Monday, that small sliver of hope was dashed. The Supreme Court issued a ruling from its emergency docket allowing Trump to send immigrants to third-party countries—even ones where they might be tortured and killed. The Republican order violates this country’s constitutional grant of due process, international human rights laws, literal treaties to which this country is a signatory, and basic human decency. In other words, it was a bog-standard Republican Supreme Court ruling.
The case, Department of Homeland Security v. D.V.D, involves Trump’s ongoing practice of deporting people to third-party countries where the immigrants aren’t even from.
The fact that our country can do this at all is sick and disgusting. Imagine: You come here, fleeing violence in your home country. Your mere presence in this country is deemed a violation of our (stupid and cruel) immigration laws, so we decide to deport you. But our own government determines that we can’t send you back to your home country, because the violence you were fleeing was so real and obvious that there’s a great chance you’ll be killed if you are returned.
The rational play would be to hold you here, in America, the country whose immigration laws you allegedly violated, but no, no, no, our government decides to send you to an entirely different place.
You can well imagine the kinds of countries that are willing to onboard our immigration problems, for a fee. They’re places like El Salvador, which has developed an entire revenue stream from imprisoning and torturing immigrants, or South Sudan, a country wracked by war and violence.
The government is not supposed to send people to countries where they might be tortured. That’s not just due to a moral imperative or a judicial rule. It’s because of a human rights treaty that this country has been a part of for decades. It’s called the Convention Against Torture, and it states: “No State party may expel or extradite a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
In other words, if a judge determines that the place the government is trying to send someone might torture that person when they get there, then the government needs to send them somewhere else.
This shouldn’t be a hard rule to follow! And, indeed, it has been followed for decades. But Trump and his legal henchman Solicitor General John Sauer found a “loophole” in the rule. For any young lawyers reading: If someone asks you to find a “loophole” in a treaty called the Convention Against Torture… that is your signal that you are working for the bad guys. Quit now or pray that no decent people discover what you used to do for a living.
The loophole apparently exists for situations where a judge has already prevented the government from sending an immigrant to a country specified by the government. According to the Trump administration, once the judge has blocked deportation to any of the countries the government brought up in the initial hearing, the government is free to send the immigrant to a country the government never mentioned previously, without having to go through a second hearing to determine if these new countries also torture people.
So if the government says, “We’re going to send you to Isengard,” and a judge says, “No, they’ll be killed by the white hand of Saruman,” the Trump administration can say, “Fine. But you didn’t say anything about Mordor,” and ship them away. This, somewhat obviously, flouts the letter and the spirit of the law and the Convention Against Torture, but what reads to you and me as “clearly illegal” reads to John Roberts and his clique of legal arsonists as “a fun challenge.” Which brings us to DHS v. D.V.D.
I know that many important organizations are asking you to donate today, but this year especially, The Nation needs your support.
Over the course of 2025, the Trump administration has presided over a government designed to chill activism and dissent.
The Nation experienced its efforts to destroy press freedom firsthand in September, when Vice President JD Vance attacked our magazine. Vance was following Donald Trump’s lead—waging war on the media through a series of lawsuits against publications and broadcasters, all intended to intimidate those speaking truth to power.
The Nation will never yield to these menacing currents. We have survived for 160 years and we will continue challenging new forms of intimidation, just as we refused to bow to McCarthyism seven decades ago. But in this frightening media environment, we’re relying on you to help us fund journalism that effectively challenges Trump’s crude authoritarianism.
For today only, a generous donor is matching all gifts to The Nation up to $25,000. If we hit our goal this Giving Tuesday, that’s $50,000 for journalism with a sense of urgency.
With your support, we’ll continue to publish investigations that expose the administration’s corruption, analysis that sounds the alarm on AI’s unregulated capture of the military, and profiles of the inspiring stories of people who successfully take on the ICE terror machine.
We’ll also introduce you to the new faces and ideas in this progressive moment, just like we did with New York City Mayor-elect Zohran Mamdani. We will always believe that a more just tomorrow is in our power today.
Please, don’t miss this chance to double your impact. Donate to The Nation today.
Katrina vanden Heuvel
Editor and publisher, The Nation
The case involves four immigrants who had been through deportation hearings and received a ruling that they couldn’t be shipped back to their home countries. After those hearings, Trump decided to send them to South Sudan—a country that was not on the list of potential destinations during the initial deportation proceedings—without giving them another hearing to determine if South Sudan was a safe place for them to be (spoiler: It’s not).
A district court judge in Massachusetts blocked the deportations (more on that later), but on Monday, the Supreme Court intervened. In an unsigned opinion, the six Republican justices ruled that Trump could resume deportations to countries that might violate the Convention Against Torture while the government continues to appeal the lower-court ruling.
The Republican ruling wasn’t on the “merits,” which means the justices didn’t rule on whether Trump’s practices violate the law. Instead, they issued a procedural ruling taking away the power of the lower courts to stop Trump’s torturous practices. This has become the favorite move of the Republican justices during the Trump administration: lift injunctions placed against Trump by lower courts and allow him to carry out his unconstitutional policies, while promising to rule on the legality of those policies at an unspecified later date. It gives Trump plenty of time to do whatever he wants without the court having to officially support it.
Again, I always expected this Supreme Court to be in favor of torturing immigrants. Republican justices like torture more than Jack Bauer. Where I’d hoped for daylight between Trump’s method of sending immigrants to be tortured and the Republican judicial method of sending immigrants to be tortured was on the issue of which branch of government sets the rules for torturing immigrants. As I mentioned, Trump’s deportations had already been blocked by lower courts, but Trump kept sending people away anyway. The plaintiffs in this case, for instance, had been sent to Djibouti pending a ruling on whether they could be sent to South Sudan. Legally, they should have been able to stay in America while their case was being deliberated. I thought there was a chance that the Supreme Court would keep the lower-court injunction in place as a rebuke to Trump’s consistent attempts to get around court orders.
But I hoped for too much from the Republicans. Justice Sonia Sotomayor highlighted the failure of her Republican colleagues to defend the judicial system in her dissent. She wrote: “The Government thus openly flouted two court orders, including the one from which it now seeks relief. Even if the orders in question had been mistaken, the Government had a duty to obey them until they were ‘reversed by orderly and proper proceedings.’”
Unfortunately, thanks to the Republican supermajority on the Supreme Court, the Trump government has no duty to obey lower-court rulings.
Now, with the injunction lifted, Trump can resume sending immigrants to their pain and suffering, while the case makes its way, over the next few years, to the Supreme Court on the regular docket. It’s still possible that, later, at a time of their own choosing, at least two of the Republicans will decide that Trump’s brazen violation of the Convention Against Torture actually does violate the Convention Against Torture.
But while the Supreme Court waits to figure it out, countless numbers of immigrants will be sent to places like South Sudan, in violation of the Convention Against Torture and the due process of law.
This is just what we do in this country now. We are a rogue state, a menace on the international stage, and the kind of place that finds “loopholes” in international human rights treaties. We are the bad guys.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and a columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution and Bad Law: Ten Popular Laws That Are Ruining America, both published by The New Press. You can subscribe to his Nation newsletter “Elie v. U.S.” here.