SCOTUS considers Trump’s bid to end Temporary Protected Status for Haitians and Syrians
The Supreme Court on Wednesday grappled with whether the Trump administration has the authority to end humanitarian protections for thousands of immigrants without facing judicial review.
While an unrelated ruling about the Voting Rights Act overshadowed the arguments, the court’s conservative majority appeared skeptical of the legal challenge to reverse the cancellation of temporary protected status for thousands of Haitians and Syrians.
Solicitor General D. John Sauer argued that Congress gave the Secretary of Homeland Security unreviewable discretion to manage and end TPS designations, arguing that a legal challenge would result in “judicial micromanagement” of foreign policy.
“Congress balanced the risk there might be some decision that's erroneous or baseless… that would evade judicial review, against the risk of what we're living through here, which is judicial micromanagement of the sorts of foreign policy laden in determinations and decisions that are naturally conferred upon the political branches,” Sauer said.
But attorneys representing the Haitians and Syrian Temporary Protected Status holders argued that the Homeland Secretary must follow the “procedural guardrails” set by Congress, which include reviewing country conditions, consulting other government agencies, and providing TPS holders 60 days of notice.
“The bottom line is the secretary can terminate TPS, but he must turn square corners and follow the rules Congress set,” said attorney Ahilan T. Arulantham. “In contrast, as we've heard today, the government reads the statute like a blank check today. They want to use it to expel non-citizens, but the power that they seek is a double-edged sword.”
Justice Amy Coney Barrett questioned the significance of the legal challenge, which was described as a “box-checking exercise,” if the Trump administration still canceled the designation as long as they followed the procedural steps.
“If it's just kind of a box-checking exercise, I mean, why would Congress permit review of the procedural aspect, when really what everybody cares about much more is the substance?” Barrett asked.
“I think it's because Congress and us too, and the millions of people who live with TPS holders, have some faith in government, and they believe that if there is consultation, the decisions will be better,” Arulanantham said.
Sauer pushed back on those arguments, claiming that the Trump administration fulfilled the procedural requirements by “seeking input” from the State Department, though he claimed that even those basic steps were not necessary.
“If the secretary posted a notice on X saying, ‘I hereby terminate Syria's TPS program effective tomorrow,’ you would say that there's no judicial review of that decision,” said Justice Sonia Sotomayor.
“Correct,” Sauer said.
The three liberal justices also pressed Sauer about President Donald Trump’s public and social media comments about Haitian immigrants, suggesting the statements show a “discriminatory purpose” behind the TPS cancellation.
“The President has disparaged Haitian TPS holders specifically as undesirables from a ‘s------- country,’ and days after falsely accusing them of ‘eating the dogs and eating the cats of Americans,’ he vowed that he would terminate Haiti's TPS, and that is exactly what happened,” Justice Sonia Sotomayor said.
Justice Ketanji Brown Jackson pushed back on the government’s claim that Trump’s rhetoric was focused on policy issues like crime or poverty and pointed to remarks made about “welcoming people” from Norway or Denmark.
"If the position of the United States is that we have to have an actual racial epithet... [and] we aren't allowed to look at all the context," Jackson said, then the court would be ignoring a "prime example" of discriminatory intent.
Justice Jackson noted that U.S. District Judge Ana Reyes -- who attended Wednesday’s hearing and blocked the termination of TPS for Haitians in February -- found that there is evidence of "discriminatory intent.”
“So aren’t we bound in some regard with respect to what the lower court has already determined about these facts?” she asked.
Sauer said the court should apply the logic of a different judge who said the President’s statements “are less relevant.”
At one point during the hearing, Justice Brett Kavanaugh questioned the protections in place for Syrians by mentioning that Bashar al-Assad’s regime is no longer in place.
“The whole thing was the Assad regime,” Kavanaugh said. “After 53 years of complete oppression and brutal treatment, it’s done.”
Arulantham, who argued on behalf of the Syrians, pushed back and said that while the regime may have changed, the country remains a war zone and pointed to current State Department reports of violence in the country.
“It is of no relevance because even if the secretary is right and the State Department is wrong, it doesn't change the fact that they didn't talk to each other, and the national interest is not a criteria,” Arulantham said.
While the Court on Wednesday appeared closely divided on whether to invalidate Trump's cancellation of TPS for Haitians and Syrians over procedural missteps, the bottom line is that the administration retains almost unquestionable discretion as to if and when TPS status for certain countries should be discontinued.
And that means, if the legal teams representing the migrants prevail in this instance, it may be short-lived. The administration can move again to cancel their status, following the appropriate procedural steps, and more than 350,000+ immigrants who have lived here legally for quite some time under TPS could be forced to leave the country.
The court is expected to issue its decision in the case this summer.
