The Supreme Court appeared ready to give the Trump administration considerable deference in its decision to end Temporary Protected Status for people from various countries, likely spelling doom for lawsuits hoping to block the administration’s purge of TPS designations.
The justices heard arguments in the consolidated cases Mullin v. Doe and Trump v. Moit, where they were asked to determine whether federal law bars review of Trump’s decision to rescind TPS for people from Haiti and Syria. While the case involves only President Donald Trump’s efforts to end TPS for two countries, the forthcoming ruling will have sweeping effects for the various other countries where Trump is attempting to end TPS and a key test of the president’s immigration agenda.
During Wednesday’s arguments, several justices appeared deeply skeptical of the arguments presented by lawyers trying to block the end of TPS for Haiti and Syria.
Ahilan Arulanantham, the lawyer for Doe, who is going after Trump’s bid to end TPS for Syria, argued that while federal law explicitly bars courts from reviewing the Homeland Security secretary’s determination of whether TPS may be revoked, the process as outlined in the law, including whether the secretary consulted proper authorities and statutory requirements for notifying the public in advance of any decision, can be reviewed.
Justice Samuel Alito expressed concern that affirming that those parts of the process are reviewable by judges could “blow a hole” through the judicial review bar, as Solicitor General D. John Sauer warned. He appeared worried that Arulanantham’s theory would make it always “possible to pick procedural faults” with a determination that Congress said should be beyond the scope of courts.
Other justices appeared skeptical of the need to allow significant review of the process if it is simply a “box-checking exercise,” as Justice Amy Coney Barrett phrased it in her question to Arulanantham. She questioned the lawyer while noting the very low standard for how much and what type of consultation by other agencies is necessary before a secretary decides to revoke TPS.
Geoffrey Pipoly, the lawyer for Moit, who is going after Trump’s bid to end TPS for Haiti, was questioned by Justice Neil Gorsuch over how the process of a secretary’s determination can be challenged if it is properly filed in the Federal Register as outlined in immigration law. Gorsuch specifically asked about how a lower federal court postponing the end of TPS for Haiti is not actually just a judicial review of the DHS secretary’s determination, which federal law prohibits.
While the justices seemed skeptical about opening up judicial review for the process of ending TPS, several of the justices did appear to take issue with the Justice Department’s arguments that no part of the process could ever be reviewed.
Justice Sonia Sotomayor asked a hypothetical question about whether the Homeland Security secretary could post on X that he was ending TPS for Haiti effective tomorrow, instead of giving a 60-day notice and posting it in the Federal Register as required by the Immigration and Nationality Act, and whether that would be reviewable by a court. Sauer responded it would not, fueling more questions and skepticism from mostly the liberal justices.
Sauer was also grilled on whether a court could question if the Homeland Security secretary properly consulted different agencies, in accordance with the INA. Justice Ketanji Brown Jackson asked if the DHS secretary could ask a Ouija board or draw names out of a hat to determine if TPS would be revoked or extended for a country.
“I had a hypothetical to pull out a Ouija board,” Jackson said. “The secretary says, ‘You know how I’m going to figure this out? I’m going to – another example – put Syria in a hat and Haiti in a hat on a slip of paper and all the countries, and I’ll pull out the ones that get TPS.’ That’s not following the statutory steps. She’s made a determination to do that and your view would be that no judicial review of that claim.”
Sauer responded by cautioning that lower court judges would abuse any power the Supreme Court grants them to hold up TPS determinations.
“In any exception that the court would craft here would be something that a truck could be driven through,” Sauer said in response, arguing exceptions would blow a massive hole through the judicial review bar in the INA. “And that’s what we see in the lower courts and that’s what we see in the briefing in this case.”
TRUMP’S TPS IMMIGRATION CRACKDOWN FACES SUPREME COURT TEST
Wednesday’s arguments marked the final scheduled oral arguments for the Supreme Court’s current term. The justices are expected to release opinions in the roughly three dozen outstanding cases over the coming weeks, through the end of June.
The TPS case marks the latest test of the president’s policies at the high court this term, after the justices heard arguments over the president’s sweeping tariffs, birthright citizenship order, and executive branch firing power. The Supreme Court handed Trump a loss on tariffs in February but has yet to rule on the other cases.