The Supreme Court errs in this immigration ruling
The justices get it wrong on temporary protected status for Haitian and Syrian immigrants.
The pungent odor of Kristi Noem lingers in Washington. Nearly four months after she was fired as homeland security secretary, a facet of her tenure produced a Supreme Court case, decided on Thursday.
Her behavior egregiously violated the pertinent law, but was shielded from judicial rebuke by the court majority’s too-mechanical textualism about the secretary’s “determination,” meaning decision. And by a blinkered nonrecognition of the animus behind Noem’s action.
A 1990 statute allows the DHS secretary to grant temporary protected status shielding aliens in America from having to return to nations afflicted by natural disasters, wars or persecuting regimes. When the Trump administration moved to end TPS for more than 350,000 Haitians and 6,100 Syrians, five of the former and seven of the latter sued, charging that procedural requirements had not been followed, and that the TPS denial was tainted by racism.
The court ruled 6-3 for the Trump administration, with Justice Samuel A. Alito Jr., joined in the judgment by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Brett M. Kavanaugh, Neil M. Gorsuch and Amy Coney Barrett. The majority noted that the 1990 statute shields the DHS secretary’s “determination” from judicial review. And that the plaintiffs were unlikely to prevail regarding racism, because the Trump administration’s denial of TPS renewal was facially “race-neutral”: The administration has terminated every TPS designation that has come up for renewal.
Justice Elena Kagan, joined in dissent by Justices Sonia Sotomayor and Ketanji Brown Jackson, agrees that the TPS statute prevents judicial review of the DHS secretary’s final decision about TPS, but does allow judicial review of whether the secretary, in reaching that decision, “adhered to the procedures it mandates.” And Kagan noted that although previous DHS secretaries had “repeatedly” found Haiti and Syria “too dangerous to permit safe return,” Noem declared them safe without complying with specific statutory procedures that deny the DHS secretary “unfettered discretion.”
In February, this column noted: The law required Noem to review conditions in Haiti after consulting with appropriate government agencies (note the plural). Instead, she made her decision, then conducted a make-believe “consultation.” A Noem staffer sent a two-sentence email to a State Department staffer who, 53 minutes later, sent a comparably brief judgment that Noem’s policy triggered no foreign policy concerns.
Kagan, however, noted the irrelevance of this: The law requires consultation not about foreign policy implications but about whether conditions are safe in the pertinent country. And Kagan refuted the majority’s claim to see “no evidence that race played any role in the Haiti decision.”
Noem was implementing the president’s proclaimed animus even against immigrants who are in America legally, but whom he considers icky. Kagan says prior court rulings establish that the Haitians needed to show only that “a racially discriminatory purpose” was “a motivating factor” (emphasis added) in the termination of Haiti’s TPS designation. Well.
Noem’s former employer has said Haitians were eating Ohio pets (see below). He has said migrants such as they are “poisoning the blood” of America and Haitians “probably have AIDS.” Was race on the president’s mind? Donald Trump has clarified this: “Why is it we only take people from shithole countries” like Haiti and Somalia? “Why can’t we have some people from Norway [and] Sweden?” Kagan: “Haitians are Black. (Norwegians and Swedes not so much.)”
Three days after Noem terminated TPS for Haitians and Syrians, she recommended “a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies” who “slaughter our heroes” and “suck dry our hard-earned tax dollars.” She refrained from echoing Trump’s assertion about kitten-cooking Haitians in Springfield, Ohio. This marks her as a MAGA moderate. JD Vance spread the pet-eating fiction because he said creating “stories” (his word) makes the media notice Americans’ suffering.
Surely justices are not required to ignore such rhetoric? And although thoughtful people disagree about whether, or how much, justices should consider the downstream consequences of their rulings, Kagan writes:
One of the Haitian plaintiffs, an Alzheimer’s researcher, has Type 1 diabetes, which can be easily treated in America but can be a “death sentence” in Haiti “given that country’s collapsed health-care infrastructure.” And a Syrian plaintiff will have to return with her 17-year-old daughter, who has lived here most of her life and “will have no future in Syria because she speaks little Arabic.”
Time and freshening breezes will cleanse Washington, dissipating the legacies of appointees like Noem, and of the president who chose them. The court’s mistaken ruling she provoked will be more lasting.
What readers are saying
The conversation explores a range of strong opinions and emotions regarding a Supreme Court decision on immigration, particularly focusing on Temporary Protected Status (TPS). Many participants express outrage and disappointment, accusing the Court of racism, bigotry, and... Show more
This summary is AI-generated. AI can make mistakes and this summary is not a replacement for reading the comments.
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