Temporary Protected Status (TPS)
Since the start of President Donald Trump’s second term, the Department of Homeland Security (DHS) has sought to end TPS for over 1 million migrants from 13 countries, including Venezuela, Haiti, Somalia, and Syria. These termination orders have been challenged in court and, to date, seven of them remain paused.
The Supreme Court’s ruling, however, puts all of them in jeopardy. While it allows DHS to remove legal protections for Haitians and Syrians specifically, it paves the way for the department to terminate TPS for any group with little to no oversight.
if Trump’s gross fearmongering about Haitians eating cats and dogs is not “overtly racial,” then it’s hard to imagine this Supreme Court acknowledging any of this administration’s blatant racism and xenophobia.
Writing for the majority, Justice Samuel Alito claims that the courts are prohibited from reviewing whether DHS’ decision to terminate TPS complied with the legally required procedures needed to cancel the status. For example, whether former DHS Secretary Kristi Noem “inadequately consulted the State Department about conditions in Syria” or, more broadly, whether “her decision that country conditions in Syria and Haiti justified termination of their TPS designations” are exempt from any form of judicial review.
Importantly, the Supreme Court did not rule that DHS followed the proper protocols when ending TPS. Nor did it determine that conditions in those countries were safe—and, in fact, the Trump administration knows they are not. The State Department has active travel advisories warning Americans against traveling to Syria and Haiti “for any reason” due to the risk of crime, terrorism, kidnapping, unrest, limited healthcare, hostage taking, and armed conflict. It is also worth noting that the present conditions in those countries are the direct result of America’s actions in Syria through decades of sanctions and military intervention; and in Haiti, through years of colonial occupation and repeatedly undermining their democratic process.
For the conservative justices, none of this matters. These issues are, in their view, beyond the scope of the courts.
This is a ridiculous assessment. The relevant statute (8 U.S.C. 1254a) reads: “There is no judicial review of any determination […] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” The court’s conservatives read the word “determination” here to refer to (i) the final decision, (ii) the entire decision-making process, and (iii) every sub-decision within that process. Based on that definition, they conclude that this statute “squarely bars” the courts from assessing the legality of any aspect of DHS’ decision to end TPS.
As Justice Elena Kagan puts it, this interpretation is not only “very broad,” but “very strange.” In her dissenting opinion, she correctly notes that the statute only applies to the final “determination” with regards to whether TPS is actually granted, terminated, or extended. It “does nothing to stop courts from reviewing […] other things” such as “the procedural steps the Secretary must undertake prior to making any determination about country conditions.”
This is not only more consistent with the relevant text but reflects a basic presumption inherent to our system of checks and balances—namely, that “Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.”
After all, if Congress intended DHS to have broad authority to revoke TPS at its sole discretion, then why would it create a multi-step protocol that the department must follow to lawfully end those protections? That fact alone entails that it always intended how DHS reached its “determination” to be subject to judicial and external review.
The conservative majority ignores such considerations. Instead of proper judicial interpretation, they offer a politically motivated and disingenuous rationale designed to give the Trump administration complete control over the humanitarian program.
To this end, the Supreme Court granted the Trump administration one more gift: sanitizing its racism.
The court rejected the plaintiff’s claim that terminating TPS for Haitians was racially motivated and thus violated the equal protection clause. For the court’s conservatives, none of President Trump’s past remarks—which include that Haitians are “eating the dogs,” “probably have AIDS,” and that Haiti is a “shithole country”—“were overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” Whatever these “race-neutral justifications” are, the court conveniently fails to elaborate.
In his concurring opinion, Justice Clarence Thomas goes even further. He posits that the plaintiff’s suit would fail simply because “aliens have no equal protection rights against the Federal Government.” Constitutionally, this is painfully wrong. Morally, this is utterly disgusting.
In one fell swoop, the Supreme Court effectively cleared all legal obstacles against the Trump administration’s efforts to end TPS for anyone at any time for any reason. Their ruling renders non-constitutional challenges regarding policy adherence moot from the outset. And if Trump’s gross fearmongering about Haitians eating cats and dogs is not “overtly racial,” then it’s hard to imagine this Supreme Court acknowledging any of this administration’s blatant racism and xenophobia. Their willful ignorance renders the equal protection clause similarly moot.
Asylum Entries
To make matters worse, the Supreme Court was not done. In a separate decision, the court’s conservatives upheld the Trump administration’s “turn-back policy” (also known as “metering”) that allows federal agents at the US border to stop migrants from crossing into the US.
Currently, federal law permits any migrant “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival […])” to apply for asylum. In Mulin v. Al Otro Lado, the Trump administration argued that their policy does not violate this law since, insofar as those migrants never step foot onto US soil, they never become entitled to apply for asylum in the first place.
The Supreme Court agreed. Writing again for the court’s majority, Alito claims that this case is “straightforward.” He writes, “In ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters the place.”
The Trump administration does not cherish life. The Supreme Court does not value justice. Congress is now the last line of governmental defense against full-on fascism.
Yet, as Justice Sonia Sotomayor writes in her dissenting opinion, the majority’s fixation with the word “in” overlooks the broader context of the statute. Federal law dictates that any migrant “arriving” and “seeking admission” into the country “shall be inspected by immigration officers.” If they are ineligible for admission, they shall be removed unless they indicate “an intention to apply for asylum […] or a fear of persecution.” In that case, “the officer shall refer the alien for an interview.” That clause clearly applies to migrants who haven’t physically entered the US.
This also explains the language Congress uses in that statute. Under the majority’s reading, to “arrive in” the US is synonymous with being “physically present in” the US. But, if this is true, then why would Congress include both phrases if they were so obviously redundant? It’s because, in addition to being physically present, those who have arrived before an immigration official also have the right to apply for asylum even if they are not physically present in the US.
As Sotomayor bleakly remarks, “The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not.”
This point not only underlines the cruelty of the policy, but also its sheer stupidity. Asylum-seekers brave horrible conditions, traveling hundreds if not thousands of miles away from their homes in search of a better life. Sotomayor is obviously correct that some will take the extra steps to enter the country by any means necessary. This is especially true if they believe that doing so is their only means of acquiring asylum. Trump’s policy undermines a system that would allow federal officials to screen migrants at the border, review their case, and provide them proper guidance for one that openly encourages the very kinds of “illegal entries” that his administration consistently bemoans as an existential threat to the nation.
Trump’s Humanitarian Crisis
With these decisions, the Supreme Court once again bends the knee to Trump’s vile agenda of violence and death. Eliminating humanitarian protections and denying asylum to those who need them most betray every value that makes this nation great.
What’s more, the court further exacerbates a humanitarian crisis that Trump is either intentionally or indifferently manufacturing. In his second term alone, he has either threatened or attacked 15 countries including Greenland, Venezuela, Somalia, and Syria; launched over 60 military strikes in the Caribbean and Eastern Pacific Ocean that have killed over 200 people; eliminated the US Agency for International Development (USAID)—an act that could lead to 9.4 million deaths by 2030; launched an illegal war that has killed more than 7,300 people in Iran and Lebanon; a war that has also wrecked the global economy and caused fuel and food shortages in the world’s poorest and most remote areas; has consistently aided and supported Israel’s genocide in Gaza; imposed a total oil blockade that is economically asphyxiating Cuba; and has made refugee status in the US a privilege nearly-exclusive to white South Africans (who he claims—without evidence—are facing “racially motivated violence”), among many other similarly insidious and corrupted acts.
Our best option is to empower Congress to stand up against both the Trump administration and his Supreme Court by working to elect as many progressive candidates in November.
In short, the Trump administration does not cherish life. The Supreme Court does not value justice. Congress is now the last line of governmental defense against full-on fascism.
Fortunately, even Republicans understand the gravity of this situation. Rep. Mike Lawler (R-NY), for instance, has already called for Congress to extend TPS for Haitians. For all of Trump’s bigotry, migrants remain an indispensable part of the US economy.
Ultimately, we need extensions for every group under threat from the Supreme Court’s reckless decisions as well as new protections for those who have already lost their TPS designations. For now, our best option is to empower Congress to stand up against both the Trump administration and his Supreme Court by working to elect as many progressive candidates in November. Before things get worse, we need fighters in Congress that will serve the people’s interest and stand up to Trump and his cronies.
