In a 6-3 vote on Thursday, the Supreme Court ruled that the Trump administration may immediately deport roughly 350,000 Haitian and 6,000 Syrian beneficiaries of Temporary Protected Status, a humanitarian program created by Congress to protect people from being deported to countries to which they cannot safely return.
Former Homeland Security Secretary Kristi Noem terminated the TPS designations for Haiti and Syria last year. But holders of TPS status filed lawsuits in federal court, arguing that the rescissions violated the Administrative Procedure Act and the Constitution. Lower courts reasoned that the TPS holders were probably right, and issued preliminary orders allowing them to stay in the country while their cases proceed.
The Supreme Court’s ruling today in Mullin v. Doe reverses that grant of relief. As a result, the Trump administration now has permission to start sending Haitian and Syrian TPS holders out of the country and into harm’s way.
Federal law permits the Secretary of Homeland Security to end a TPS designation. But it provides rules for doing so—rules that Trump and Noem flouted in an undisguised effort to purge the country of nonwhite people. Writing for the majority, Justice Samuel Alito nevertheless held in Mullin that federal courts have no authority to review whether the secretary follows the rules.
In the Haiti case, the lower court judge found that the Trump administration had also likely violated the Equal Protection Clause of the Fourteenth Amendment by discriminating on the basis of race. But Alito rejected this argument, too, concluding that the theoretical existence of “race-neutral justifications” for the TPS terminations defeat any argument that the terminations are the product of illegal racial discrimination. Mullin is a declaration from the Supreme Court that neither the law nor the lives of nonwhite people matter. It is going to get vulnerable people killed.
The TPS statute specifies that, before the secretary terminates a TPS designation, they must engage in “consultation with appropriate agencies of the Government” and “review the conditions in the foreign state” in order to assess whether returning TPS holders to their countries of origin would be dangerous.
Noem skipped all of that. The district court judges in both the Haiti and Syria cases found that Noem failed to consult other agencies or do any good-faith review of country conditions. And Noem even stated, in the TPS termination notices for Haiti and Syria, that she was “required” to end their protected status, regardless of conditions in either country, because it was “contrary to the national interest” for TPS holders to remain in the United States. Around the same time, Noem publicly denounced Haitians and other TPS holders as “killers, leeches, and entitlement junkies.” Trump said they are “poisoning the blood” of the nation, and called Haitian immigration “a death wish for our country.”
In his opinion in Mullin, though, Alito emphasized language in the TPS statute indicating that there is “no judicial review of any determination” with respect to the termination of a TPS country designation. “This text is clear,” Alito said, “and its plain meaning is very broad.”
The issue with Alito’s analysis is that the TPS holders did not actually argue that Noem’s determination was wrong. They argued that Noem did not follow the legally required process for making that determination. Specifically, instead of making her determination based on law and facts, she did so based on prejudice and politics. The lower court judges stressed that the TPS statute gives the secretary some discretion, but not unbounded discretion. Otherwise, the secretary could terminate a TPS designation based on the flip of a coin—which, if future DHS secretaries are so inclined, they are now apparently free to do.
Alito next turned to the constitutional argument. Under the Court’s Equal Protection precedents, the Haiti plaintiffs needed to show that termination of TPS was likely motivated at least in part by a racially discriminatory purpose. As Justice Elena Kagan explains in her dissent, a “motivating factor” does not mean “the sole factor, or even the dominant or primary one.” The question is only whether the available circumstantial and direct evidence of intent shows racial discrimination was among the reasons for the termination.
One form of evidence is contemporary statements by decisionmakers. And TPS holders provided the court with many. For example, Trump has described Haiti as “filthy” and “disgusting.” He has repeatedly complained about the United States allowing migration from predominantly-Black “shithole” countries like Haiti and Somalia as opposed to predominantly-white “nice” countries like Norway and Sweden. To that end, Trump has imposed travel bans on dozens of African countries while simultaneously creating a refugee program for white South Africans. So far this year, the United States has admitted a few thousand refugees to the country, and all of them have been white. As Kagan observed in dissent, many of Trump’s statements are “so repellent and racially inflected” that “the majority declines to put them in print.”
Alito’s opinion does not cite any of this, and instead only describes comments by Trump and Noem at a high level of generality. For instance, according to Alito, many of these statements were mere “strong objections” to America’s immigration system as a whole that linked immigrants to “crime and other social ills.” Others “expressed antipathy” towards people from specific countries, like Haiti. And as a matter of “substance,” Alito said, none of the statements were “overtly racial,” and “all expressed policy views that could rest on race-neutral justifications.” Alito also highlighted that the administration has terminated TPS designations for a “racially diverse” array of countries spanning continents. Apparently, Trump can’t be racist if he hates all non-white people equally.
While he tutted about the vulgarity of modern “political discourse,” Alito said plaintiffs cannot rely on Trump administration officials’ “heated language” in order to make out a racial discrimination claim. Basically, just because the president says racist shit all the time doesn’t mean you get to play the race card.
The dangerousness of the Court’s decision is not conjecture: Late last year, the Trump administration deported four women back to Haiti, and in February, their decapitated bodies were found in a river. Mullin v. Doe allows the Trump administration to immediately begin deporting TPS holders into conditions like these. By making excuses for the president’s bigotry, the Republican justices are not only making a mockery of the law—they are placing the lives of people of color in jeopardy.
