The Supreme Court on Wednesday was divided in Mullin v. Doe over the Trump administration’s efforts to strip citizens of Haiti and Syria of their protections under a federal program that allows foreign citizens to remain in the United States when the U.S. government believes that it is not safe for them to go home. After roughly one hour and 45 minutes of oral arguments, it was not clear whether a majority of the justices would allow the challengers’ claims to go forward, or whether the challengers would ultimately prevail if they did.
The program at the center of the case is known as the Temporary Protected Status program. Enacted by Congress in 1990, it authorizes the Department of Homeland Security to designate a country’s citizens as eligible to remain in the U.S. and work if they cannot return safely to their own country because of a natural disaster, armed conflict, or other “extraordinary and temporary” conditions there.
Then-Secretary of Homeland Security Janet Napolitano designated Haiti under the TPS program in 2010, shortly after a powerful earthquake rocked the country, killing more than 300,000 people and causing extensive damage.
Two years later, Napolitano made a similar designation for Syria, citing “deteriorating conditions” in the country after a “brutal crackdown” by Syrian dictator Bashar al-Assad against anti-government dissenters.
The initial designations of Haiti and Syria lasted for 18 months but were repeatedly extended until 2025, when Kristi Noem – then the Secretary of Homeland Security – announced that the Trump administration planned to end both designations.
Noem indicated that a new Syrian government was attempting to “move the country to a stable institutional governance,” and that she had determined that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals … from returning in safety.” And in both cases, she indicated that it would be “contrary to the national interest” to allow the countries’ TPS designation to remain in place.
A group of Haitian nationals with TPS went to federal court in Washington, D.C., to challenge Noem’s efforts to end the program, while a group of Syrians with TPS did the same in New York. Federal judges in those cities blocked the Trump administration from ending the TPS program for Haiti and Syria, and two federal appeals courts declined to step in.
That prompted the Trump administration to come to the Supreme Court earlier this year, asking the justices to put the lower courts’ orders on hold and hear oral arguments in the disputes now, without waiting for the federal appeals courts to weigh in. The request came less than a year after the Supreme Court twice paused rulings by a federal district judge in San Francisco that would have temporarily blocked the Trump administration from ending a TPS designation (as well as an extension of that designation) for Venezuela.
In an order on March 16, the Supreme Court agreed to take up the Haiti and Syria disputes, but it left the lower courts’ rulings in place, so that the Trump administration could not end the TPS designations for Haitian and Syrian nationals while the case moved forward at the Supreme Court.
Representing the Trump administration, U.S. Solicitor General D. John Sauer told the justices on Wednesday that under the statute creating the TPS program, courts cannot review any determination by the DHS secretary with regard to the designation or termination of a foreign nation for protected status. “That provision means what it says,” Sauer stressed: It bars review of both the ultimate decision to terminate and each step that leads to it. Moreover, he added, the Haitian and Syrian nationals’ claims in this case challenge the kinds of foreign-policy decisions that political branches normally make.
Representing the Syrian challengers, UCLA law professor Ahilan Arulanantham countered that although the DHS secretary “can terminate TPS, … he must turn square corners, follow the rules Congress set.” Arulanantham warned the justices that the government was asking for a “blank check” that could ultimately turn into a “double-edged sword”: a future DHS secretary, he suggested, could use it to provide sweeping relief to all undocumented immigrants, but on the government’s reading, “the courts could do nothing.”
Geoffrey Pipoly represented the Haitian challengers. He told the justices that Noem’s “termination of Haiti’s TPS was different. It was not the result of the mandatory review process but was instead a preordained result driven by the President’s resolve to end TPS for Haiti, no matter what.” Indeed, Pipoly continued, the termination was the result of President Donald Trump’s “racial animus towards non-white immigrants and bare dislike of Haitians, in particular.”
The court’s three Democratic appointees were all skeptical that, as Sauer contended, Congress had barred courts from considering claims – like the challengers’ – that the DHS secretary had not followed the appropriate procedures in terminating TPS status.
Justice Ketanji Brown Jackson, for example, emphasized that, in the TPS statute, “Congress has clearly required … certain statutory steps, to include, for example, consultation.” Could courts review a claim alleging, Jackson asked Sauer, that the DHS secretary had made a determination “without following the statutory steps?”
When Sauer responded that they could not, Jackson expressed puzzlement. Why, she asked, would Congress enact this statute and require the DHS secretary to take specific steps “if there was no ability for anyone to challenge the Secretary’s compliance?”
Justice Sonia Sotomayor had a similar question, asking Sauer whether courts could review a termination of TPS announced on X, “effective tomorrow.” When Sauer again answered that they could not, Sotomayor pressed him, noting that the DHS secretary in doing so would not have complied with several of the statutory requirements, such as the mandate to publish the announcement in the Federal Register and to give TPS holders 60 days’ notice of the termination.
Sauer continued to maintain that courts could not weigh in.
Justice Elena Kagan acknowledged that courts may not be able to review the substance of the DHS secretary’s decision to designate or terminate a designation. “But that’s a different thing than to say that all the things that the statute says that the Secretary is supposed to do in order to determine” that substance “are themselves unreviewable,” she posited.
Justice Amy Coney Barrett had tough questions for both sides. On one hand, she hinted that she might agree with the Democratic appointees that at least some claims are reviewable: if they are, she asked Sauer, what standards should a court then apply to determine whether the DHS secretary had sufficiently consulted with federal agencies before designating a country or terminating a designation under TPS?
But on the other hand, Barrett asked Arulanantham whether allowing courts to review the procedural aspects of the DHS secretary’s decision but not the substance was just a “box-checking exercise” that would not ultimately help TPS holders very much. Why, she queried, “would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?”
Arulanantham responded that it was “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.”
When the debate turned to the challengers’ claims that Noem had violated the federal law governing administrative agencies when she terminated the TPS designations, much of the focus was on whether Noem had met the requirement that she consult with other agencies before terminating the TPS designations.
Sauer told the justices that the obligation to consult imposed only a minimal requirement. “If she sought input from State,” Sauer stressed, “she has consulted.” “[T]his is the sort of discretionary call that for very good reasons the statute” gives the DHS secretary the power to make.
Kagan was skeptical. “[I]f Congress says to consult about a particular subject matter,” she told Sauer, “then it seems as though what Congress said was you should ask somebody and they should give an answer.”
Justice Samuel Alito appeared unpersuaded. “[I]t’s always going to be possible to … raise objections about the adequacy … of the consultation and the words that the State Department comes back with,” he said.
But Arulanantham tried to assure the court that the challengers’ consultation claim was “extremely narrow.” “All we say is it has to be about a subject, deliberation about a subject,” he emphasized.
Chief Justice John Roberts, whose vote could prove pivotal in the case, appeared to express doubt about the government’s reliance on the court’s 2018 decision in Trump v. Hawaii, in which the justices upheld Trump’s restrictions on immigration from eight countries, several of which were predominantly Muslim, to defend against the Haitian challengers’ claim that the termination of the TPS designation for Syria also violated the Constitution’s guarantee of equal protection because it was grounded in racial animus. In Trump v. Hawaii, the government argued, the Supreme Court applied a relatively low bar, making clear that such restrictions could pass muster as long as the government’s actions “plausibly relate[] to the Government’s stated objective.” And in this case, the government argued in its brief, the termination of Haiti’s TPS designation “is plausibly related to the national-interest and foreign-policy justifications the Secretary provided.”
Roberts told Sauer that Trump v. Hawaii involved the president’s efforts to restrict who could enter the United States. “Here, we’re concerned with the Secretary and … aliens that … are already present” in the United States. “Your argument,” Roberts asked, “is a significant expansion of Trump v. Hawaii, isn’t it?”
Sotomayor pointed to derogatory remarks that Trump made about nonwhite immigrants and Haitian immigrants in particular, noting that Trump had called Haiti a “filthy, dirty, and disgusting S-hole country” and “complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark.” “I don’t see how that one statement is not a prime example of” how “a discriminatory purpose may have played a part in this decision,” she said.
Sauer characterized the statement as “unilluminating,” and suggested that, in any event, Trump’s statements were “less relevant” than Noem’s.
Alito questioned Pipoly’s contention that all of the countries whose TPS designations Noem had terminated were non-white countries, telling him that he had “a really broad definition of who’s white and who’s not white. As I said,” Alito continued, “I don’t like dividing the people of the world into these groups.”
A decision in the case is expected by late June or early July.