The U.S. Supreme Court is gearing up to effectively decide whether temporary status for hundreds of thousands of foreign nationals residing in the United States is actually temporary.
The high court held oral arguments on Wednesday in a pair of consolidated cases known as Mullin v. Doe and Trump v. Miot, which center around Trump’s revocation of Temporary Protected Status (TPS) for approximately 6,000 Syrian and 350,000 Haitian nationals, respectively. Both groups of migrants are currently living in America under the TPS program, which may be used by the executive branch to offer temporary residency to foreign nationals from countries experiencing natural disasters, violent conflicts, and other “extraordinary and temporary conditions.”
The Trump administration’s efforts to end TPS for the aforementioned groups were halted by lower courts. This was done despite SCOTUS previously pausing similar injunctions in a separate TPS case involving Venezuelan nationals.
Arguing on behalf of the Trump administration, U.S. Solicitor General John Sauer contended that a provision within the Immigration and Nationality Act that governs TPS prohibits any form of judicial review “of any determination by the [DHS] secretary with respect to the designation or termination or extension of a designation of a foreign state for Temporary Protected Status.”
“That provision means what it says … [and] bars judicial review of both the secretary’s ultimate decision whether to designate, extend, or terminate, and of each antecedent step along the way to that determination,” said Sauer, who added that “even if [challengers’] claims are not barred [by judicial review], they are meritless.”
The solicitor general’s biggest pushback came from the court’s more outspoken Democrat appointees.
Associate Justice Ketanji Brown Jackson kicked off the inquisition by pressing Sauer on what, if any, executive actions regarding TPS are reviewable by federal courts. The Biden appointee’s back-and-forth with the solicitor general ultimately prompted Associate Justice Sonia Sotomayor to join the fray and pile on with questions about the scope of judicial review as it relates to the TPS program.
Sotomayor’s refusal to allow Sauer to respond one of her queries on the issue prompted Chief Justice John Roberts to interject and permit Sauer to answer. It was sometime after this exchange in which Sotomayor and Jackson referenced President Trump’s past “sh-thole countries” remarks to push the narrative that, as the former put it, “a discriminatory purpose may have played a part” in the administration’s decision to end TPS for the various groups in question.
Associate Justice Elena Kagan took a more sober-minded approach, pressing Sauer about his argument that “all the things that the statute says that the secretary is supposed to do in order to determine country conditions are unreviewable.” She also probed him about whether, under his view, the secretary is required to consult with relevant administration officials about a country’s conditions before taking specific actions on TPS, as well as the substance of that consultation.
Sauer also fielded questions from several of the court’s Republican appointees.
While Associate Justice Clarence Thomas asked if Congress possesses the power to limit TPS regulations if the executive “has constitutional authority to do this in a discretionary way,” Roberts questioned whether Sauer’s argument amounts to a “significant expansion” of the court’s holding in Trump v. Hawaii (2018). That was the case in which a majority effectively upheld Trump’s travel restrictions on several countries.
Meanwhile, Associate Justice Amy Coney Barrett pressed the solicitor general on respondents’ “procedural objection” argument and what “standards a court would apply when reviewing the sufficiency of the consultation” issue if the court were to rule against the government’s argument that the matter is not subject to judicial review. Associate Justice Brett Kavanaugh, on the other hand, asked Sauer to “explain the reasons why Congress would have barred judicial review as broadly” as he claimed.
The conservative justices’ more pressing concerns, however, seemingly came during their questioning of the attorneys representing the respondents, Ahilan Arulanantham (Syrian case) and Geoffrey Pipoly (Haitian case).
Both lawyers argued that the legal provisions governing TPS do not bar courts from reviewing an administration’s actions on the program and that the government is required to undertake certain steps (ex. consultation and assessment of a country’s conditions) before implementing such policies. They further claimed that the Trump administration did not adhere to this purported process, with Pipoly separately arguing that the president’s decision to end TPS for Haitians was racially motivated.
Thomas extensively probed Arulanantham and (to a lesser extent) Pipoly on how they interpret the statute at hand’s “jurisdiction-stripping provision.” The Bush 41 appointee’s questioning of the latter led Roberts to ask the left-wing attorney if whether, “more generally, there was anything [Arulanantham] said that you disagree with,” to which Pipoly replied, “No.”
In her questioning of Arulanantham, Barrett posed a hypothetical in which a DHS secretary decides to terminate TPS for Syria even after she consulted with members of the State Department, who told her that conditions in the country “remain terrible.” Testing how far challengers’ argument would go, the Trump appointee asked if such a decision could be reviewed by courts.
Arulanantham acknowledged that they “could not challenge on the ground that [the secretary] is wrong and the State Department is right” but added that “what is reviewable is whether she actually asks anything and gets any information about country conditions.” The response prompted Barrett to pose a question highlighting the absurdity of such a standard.
“Is this going to get you very much? I mean, if it’s just kind of a box-checking exercise, I mean, why would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?” Barrett asked.
Another particularly notable moment occurred when Kagan was questioning Pipoly about how he squares his claims that the president’s termination of TPS for Haitians is racially motivated with the notion that TPS programs are being revoked “across the board.” The left-wing attorney circled back to the previously cited Trump comments to subsidize his argument — which Jackson eagerly piled onto.
The argument didn’t appear to sit well with Associate Justice Samuel Alito, who interjected and forcefully challenged the attorney on his claims.
“I don’t like dividing up the people of the world arbitrarily into three racial groups, but you … say [the groups whose TPS is being revoked are] all non-white,” Alito said. “But do you think that … if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say … that all of them, are they all non-white?”
The Bush 43 appointee also expressed concerns about the potential consequences arising from Arulanantham’s judicial review arguments.
Associate Justice Neil Gorsuch also appeared skeptical of Arulanantham and Pipoly’s arguments.
A decision in Mullin v. Doe and Trump v. Miot is not expected until later in court’s 2025-2026 term, which is set to end in late June-early July.
