“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
The Trump administration illegally withdrew legal status and work authorizations from hundreds of thousands of Haitians and Syrians living in the United States.
What happened in this case?
Because of particularly unsafe conditions in Haiti and Syria, forcing people from those countries to return would be extremely dangerous. So for over a decade, the Department of Homeland Security (DHS) has given them something called temporary protected status (TPS). It protects them from being deported and gives them permission to live and work in the United States. DHS first granted this to Haitians after the devastating 2010 earthquake there, and to Syrians in 2012 in light of the government’s brutal repression of the civilian population.
DHS secretaries have repeatedly reviewed conditions in those countries and determined that they are still too dangerous to permit people to return safely. So TPS status has continued until 2025, when the Trump administration withdrew it.
Congress created the TPS status. The statute recognizes that at some point, countries will no longer be so dangerous. So Congress allows the DHS secretary to terminate TPS status, but only after following certain precautions. Among other things, the secretary must (1) consult with appropriate federal agencies about conditions in the country; (2) review those conditions; and (3) determine if conditions remain so bad as to warrant retaining TPS.
But then-Secretary Kristi Noem didn’t consult with the appropriate agencies before announcing the end of TPS status for these two countries. And Trump’s racist comments about Haitians raised the additional factor of unconstitutional racial discrimination. Both decisions were challenged in court. The legal violations were so blatant that two district courts ordered that TPS status should remain in effect while litigation was pending. The Trump administration appealed to the Supreme Court.
How did the Trump and other right-wing justices rule?
Mullin v. Doe was decided 6-3, with an opinion written by Justice Alito and joined by the other MAGA justices. They reversed the lower courts and ruled that both TPS withdrawals should go into effect. Alito cited a provision of the law preventing courts from reviewing the secretary’s “determination” regarding TPS. According to the majority, “determination” includes not just the decision itself, but also the entire process leading up to it. So even though Noem failed to engage in the consultation required by Congress, he concluded, that can’t be reviewed by the courts.
He also wrote that Trump’s “heated language” about Haitians was not “overtly racial,” and that there could be non-racist reasons for wanting to restrict immigration to America.
What did the dissenting justices say?
Justice Kagan wrote a dissent, joined by Sotomayor and Jackson. She pointed out that the plaintiffs in these cases weren’t asking the courts to review whether Noem had made the right decision. Their challenge was based on the fact that she didn’t follow the procedures required by Congress, such as consulting with federal agencies about conditions in the countries. She sharply criticized Alito’s expansive definition of the word “determination” to include everything the decisionmaker does before the determination. She noted that is not how the word is used in ordinary English.
She also found that the Haitian plaintiffs had clearly shown that racism was a motivating factor. Unlike the majority, she did not protect Trump from the impact of his own words, but included numerous of his statements in the opinion. They included his outrageous comment about eating pets. They included his claim that Haitians are “poisoning the blood” of our country. They include his lament that we accept people from what he called “shithole countries” like Haiti and Somalia and not people from Norway and Sweden. Kagan observed that Trump’s comments are “shot through with racial stereotypes and tropes” and “fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”
Why is the result harmful?
The MAGA Court’s decision will have a devastating impact on hundreds of thousands of people who the Trump administration will force to return to dangerous conditions in their home countries. It gives Trump permission to bypass the TPS requirements set by Congress with impunity in its campaign of terror against immigrant populations of color. It shows the importance of filling judicial vacancies with fair-minded judges who respect the rights of all people.