Supreme Court Rules Termination of TPS Probably Constitutional

In a case challenging the termination of Haiti’s temporary protected status (TPS) designation, the U.S. Supreme Court ruled that the constitutional claim likely will fail.

A strong, race-neutral explanation for Haiti’s termination that undermines the equal protection claim is that the Trump administration has terminated every TPS designation that has come up for renewal, the Supreme Court noted. The administration “simply opposes the TPS program,” it stated.

Executive Branch’s Role Examined

Congress created TPS in 1990 to provide short-term humanitarian relief for migrants who cannot safely return to their home countries due to events such as armed conflict or natural disaster, the Supreme Court said in an opinion written by Justice Samuel Alito Jr.

The executive branch has discretion over whether to designate a country for TPS, the Supreme Court noted. Once a country has a TPS designation, certain nationals of that country living in the U.S. without another lawful immigration status qualify for work authorization and immunity from removal.

Another notable feature of TPS is that the government is required by statute to terminate a country’s TPS designation if the secretary of Homeland Security determines the country no longer continues to meet the conditions for designation, the court stated. The secretary is supposed to review each TPS designation at least every 18 months. If no action is taken by the secretary, the TPS designation automatically extends for another six months. Extensions continue until the secretary publishes a termination notice. Terminations take effect at least 60 days after the notice is published in the Federal Register.

The secretary’s TPS designation decisions are not subject to judicial review, the Supreme Court determined.

“Although designed to afford ‘temporary’ relief, TPS designations in practice have often lasted for decades,” the court stated. The current administration objects to lengthy TPS designations and adopted a new, restricted approach, the court added.

Executive Order 14159 directed cabinet officers to “ensur[e] that designations of temporary protected status are consistent with the provisions of” the TPS statute. Such designations should be, according to the executive order, “appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.”

The secretary of Homeland Security followed suit: terminating every TPS designation that has come up for renewal — 13 in all. 

Lower Court Rulings

Legal challenges followed. But the government argued there was a judicial-review bar, an argument lower courts rejected.

Syrian nationals sued to stop the termination of Syria’s TPS designation. A district court provided interim relief and the government’s arguments failed before the 2nd U.S. Circuit Court of Appeals.

Haitian nationals also sued to stop the termination of Haiti’s TPS designation. They sued, alleging violations of the Administrative Procedure Act (APA) and claiming the termination violated the constitutional right to equal protection because it was motivated by race. A district court granted interim relief and the government’s arguments failed before the D.C. Circuit.

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Court’s Holdings

Turning first to the nonconstitutional claims, such as the APA claims, the Supreme Court concluded that courts were barred from reviewing them.

The TPS statute provides, “There is no judicial review of any determination of the [secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”

The Supreme Court stated, “This text is clear and its plain meaning is very broad.” It added, “[T]he text of the TPS judicial-review bar very clearly overcomes the general presumption in favor of judicial review.”

Concurrence

Justice Clarence Thomas wrote a concurrence asserting there was no district court jurisdiction over the equal protection claim.

Even if there were jurisdiction over this claim, “the equal protection claim fails for the additional reason that aliens have no equal protection rights against the federal government,” he added.

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Dissent

In a dissent, Justice Elena Kagan wrote that the Supreme Court had undone the lower court’s preliminary relief, ruling that the terminations of TPS designations in Haiti and Syria are “based on two mistakes about the plaintiffs’ likelihood of success.”

First, there is the holding that the secretary’s compliance with the TPS statute is unreviewable by the courts. “But in fact the statute allows judicial review of whether the secretary adhered to the procedures it mandates — which is what the plaintiffs dispute here,” Kagan wrote.

Second, the Supreme Court determined that there was no evidence that race played any role in the Haiti decision. “But the evidence is there, plain to see in the president’s statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat,” she said.

There is no dispute the plaintiffs will suffer irreparable harm absent postponement of the TPS decisions, Kagan added. “Without a postponement of the TPS terminations, hundreds of thousands of Haitians and Syrians living in this country will lose their legal status and work authorization,” Kagan wrote. She emphasized, “hundreds of thousands of lives will be uprooted, most permanently, while this litigation to annul the secretary’s (likely illegal) termination orders proceeds.”

Kagan noted that TPS is a temporary program, and did not promise the plaintiffs unending humanitarian protection. “But the law prevents the program from ending as it likely did here — without the required consultations about country conditions and, as to Haiti, with impermissible race-based considerations tainting the decision,” she stated.