Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.
A key feature of the United States’ humanitarian approach to migration will be handed entirely to executive branch officials if the Supreme Court sides with the Trump administration in a legal fight that reached the justices at the end of last month. The administration claims Congress authorized the executive branch to give and take away legal relief known as Temporary Protected Status, free from any judicial oversight. Unreviewable power to decide which migrants can lawfully live and work in the United States would be extraordinary, but it wouldn’t be the first time that the court has given immigration officials remarkable power.
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Congress enacted TPS as part of the Immigration Act of 1990, which permits the Secretary of Homeland Security to allow citizens of a country in turmoil to temporarily remain in the United States. The secretary can designate a country for TPS for as much as 18 months, but there is no cap on the number of times a country’s designation can be renewed. Individuals who receive TPS may also obtain a work permit. TPS differs from asylum, another humanitarian provision of immigration law, in one important respect. While asylum requires proof that a specific individual will be targeted because of their race, religion, political opinion, or other protected basis, TPS applies to all citizens of a country that the Secretary of Homeland Security deems unsafe (except for people convicted of a felony or at least two misdemeanors) so long as they are already in the United States when DHS announces the secretary’s decision to designate the country for TPS.
Since President Donald Trump returned to the White House last year, Kristi Noem, while serving as Secretary of Homeland Security, tried to terminate TPS for 13 countries. The cases argued late last month, Trump v. Miot and Mullin v. Doe, addressed Noem’s decision to terminate TPS for Haiti and Syria. The supposed basis for this termination: If, “after consultation with appropriate agencies of the Government,” the secretary determines that conditions in a country designated for TPS are no longer unsafe, DHS may terminate TPS, according to the 1990 law signed by President George H.W. Bush.
The Justice Department claims that Congress gave the Secretary of Homeland Security unreviewable discretion to grant or terminate TPS. Specifically, in its brief, as in U.S. Solicitor General D. John Sauer’s argument before the justices, the government points to a section of the TPS statute that provides, “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
The challengers – Haitian and Syrian citizens who currently hold TPS – disagree. They argue that Congress enacted the TPS statute to limit the executive’s humanitarian use of discretion. “Congress enacted the TPS statute to cabin executive power, not unleash it,” lawyers for Haitian challengers contend. Their counterparts representing Syrian TPS beneficiaries echoed this sentiment, telling the justices, “Congress enacted the TPS statute to constrain unbridled Executive power.”
During oral argument, four justices signaled their discomfort with the government’s interpretation of the TPS statute. Justices Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan, all nominated by Democratic presidents, clearly showed disagreement with the government’s position regarding the role of the courts. These justices also signaled that they do not believe that Noem followed the consultative process that the 1990 law requires to terminate each of these TPS designations.
On the other end of the court’s ideological spectrum, only Justice Amy Coney Barrett revealed skepticism that the courts can’t review a TPS termination under any circumstances. But even her skepticism was mixed. Noting that the challengers claim that courts can review the process Noem used to consult other agencies prior to terminating TPS, but not Noem’s determination that a country is no longer unsafe, Barrett suggested that this is a meaningless distinction. “[W]hy would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?” Barrett asked Ahilan Arulanantham, the lawyer who argued on behalf of the Haitian TPS recipients.
A decision that interprets the Immigration and Nationality Act, the federal law governing immigration, to give the Secretary of Homeland Security complete discretion to end TPS, leaving no room for courts to ensure compliance with the required process, would certainly be extraordinary. But in immigration law, extraordinary is the baseline. The court has long shown remarkable deference to Congress and the executive to set whatever conditions they like when it comes to migrants’ right to enter the United States. As the court explained in an 1892 decision that Arulanantham mentioned, Nishimura Ekiu v. United States, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”
The court has imposed more limits on the power that Congress and the president have to dictate the terms of a migrant’s life once in the United States. Immigration officials must then respect certain constitutional restraints on the power of the federal government, but the court has regularly been willing to clarify where it sets the constitutional bar.
The court laid this bare in a 1976 case involving a due-process challenge to a federal law that bars migrants from Medicare unless they are permanent residents who have lived in the United States for at least five years. “In its exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens,” a unanimous court announced. More recently, the court reiterated that federal immigration officials must obey the Fourth Amendment’s prohibition against unreasonable searches and seizures, but permitted them, at least temporarily, to consider a person’s racial appearance when deciding who might be violating immigration laws. (And though the Justice Department grounded its legal argument in the constitutional flexibility that the court has long given immigration officers, the court’s decision affects U.S. citizens too. Indeed, lower courts noted that immigration officers detained and questioned several citizens in the Los Angeles area last summer.)
The government’s position is also strengthened by the fact that Barrett, the one member of the court’s conservative bloc who asked Sauer pointed questions about the government’s broad view of executive branch discretion, recently wrote that courts are sometimes powerless to stop illegal executive actions. “No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so,” Barrett wrote on behalf of the six-justice majority in Trump v. CASA, in which the court wiped away lower court decisions blocking the Trump administration from implementing nationwide the president’s executive order limiting access to birthright citizenship. (A separate challenge to the birthright citizenship executive order is pending before the court.)
If the majority of the court sides with the Trump administration, TPS is likely to become a legal tool available to presidents to wield at their political whim. The Secretary of Homeland Security will be able to turn humanitarian protections on and off without any judicial oversight. Without courts to ensure that DHS consults with the State Department or other government agencies, TPS would become just another tool in the executive branch’s policy arsenal. At times and for whatever reason, an administration could grant TPS to anyone living in the United States who doesn’t have another source of permission to remain or work here. At other times, under different political conditions, an administration could yank such permission to live and work here at a moment’s notice. Whatever the policy choice, the end result would be immense unpredictability that may make the cost of requesting TPS – revealing one’s identity and whereabouts to the federal government – too high, pushing more people away from using the legal option that Congress created.