The Supreme Court could block the Trump administration’s efforts to strip temporary legal status from more than a million immigrants.
After nearly two hours of oral arguments on Wednesday, it appeared possible that lawyers for Haitian and Syrian immigrants with Temporary Protected Status could convince a narrow majority of the high court that the Trump administration failed to take some necessary legal steps before ending their deportation protections.
Chief Justice John Roberts and Justice Amy Coney Barrett joined what seemed like a potential conservative vote to join the court’s liberal wing and ruled that former Homeland Security Secretary Kristi Noem failed to adequately consult with the State Department before concluding that it was safe for so-called TPS holders to return to their home countries.
TPS allows immigrants whose home countries have been devastated by war, widespread unrest, or natural disaster to live and work legally in the US.
Officially, the cases that went before the judges Wednesday relate only to Haiti and Syria, but the administration has followed a similar process in each of the 11 other countries it has sought to eliminate from the program over the past year or so. The rulings in the Haiti and Syria cases, expected by the end of June, are expected to have a broad impact on litigation over TPS for immigrants from other countries.
It appears that many or all of the DHS consultations occurred through only brief email exchanges. Before revoking TPS status for nearly 350,000 Haitians last year, a DHS official emailed a State Department colleague, who replied just 53 minutes later: “State believes there will be no foreign policy concerns regarding changes to Haiti’s TPS status.”
Lower court judges ruled that this fell far short of meeting the law’s requirements for consultation on existing conditions in the countries to which immigrants must return. But the Trump administration argues that a provision in the TPS law prevents any lawsuit from challenging how Noem reached her decision and is clearly intended to prevent judges from second-guessing the secretary about such cases.
Solicitor General John Sawyer told the judges, “It’s almost as if these district courts are appointing themselves junior university secretaries of state.”
However, lawyers for immigrants said that Congress was merely trying to second-guess the Secretary’s final conclusion and not give executive branch officials license to ignore the law’s express requirements regarding consultation, timing, and other procedures.
Immigrant advocates are hoping for a similar victory to the one they achieved in 2019 when Roberts joined liberal judges to block President Donald Trump’s administration from adding a citizenship question to the decennial census and in 2020 when Roberts again joined liberal judges to block Trump’s effort to end an Obama-era program that shields so-called Dreamers from deportation.
In those cases, both decided 5-4, Roberts used a flawed process to invalidate the administration’s actions while not questioning the administration’s essential power to act.
But such an outcome in TPS cases would raise questions about how much practical benefit TPS holders would receive from a ruling that Noem did not exceed within reasonable limits.
“Is it going to do you much good, I mean, if it’s just a kind of box-checking exercise?” Barrett asked.
Ahilan Arulanantham, one of the immigrant lawyers, said it would be beneficial to implement counseling as per the law.
“Congress and we too, and millions of people who are TPS holders, have some confidence in the government, and they believe that if there is consultation, decisions will be better,” he said. “I… would say fold the square corner and have them do that.”
In practical terms, such an outcome could give TPS recipients some additional time in the US and help many attempt to regain legal status through other means.
The high court again found itself debating the legal relevance of sweeping statements made by Trump about immigrants, such as his baseless claim during the 2024 campaign that Haitians in Ohio were eating dogs and cats.
While expletives are rarely uttered in the Supreme Court chamber, another immigrant lawyer recounted one of the obscenities Trump uses to describe immigrants.
“The President has specifically denigrated Haitian TPS holders as undesirables from a lousy country,” attorney Geoffrey Pipoli said. Earlier in the debate, Justice Sonia Sotomayor rejected Trump’s same remarks, noting that Trump had called Haiti a “dirty, dirty and disgusting country.”
Pipoli said the comments not only suggest a racial basis for the administration’s actions, but that Noem was merely following orders from the President, who has indicated that he wants to eliminate all TPS findings.
Trump administration officials have noted that some “temporary” designations have existed for more than two decades after being repeatedly renewed under both Democratic and Republican presidents.
