The U.S. Supreme Court
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The conservative majority on the Supreme Court appeared poised on Wednesday to permit the Trump administration to potentially begin the mass deportation of over a million foreign nationals, including individuals from Haiti and Syria, who are legally residing and working in the U.S.
These individuals currently have temporary legal status due to threats to their safety from war or natural disasters in their countries of origin.
Since the Temporary Protected Status (TPS) program was enacted by Congress in 1990, it has been supported by both Republican and Democratic presidents. However, President Trump is seeking to terminate the program.
On Wednesday, Solicitor General D. John Sauer argued before the justices that the statute explicitly prohibits any judicial review of the administration’s decisions. He also dismissed the notion that a separate law intended to ensure procedural fairness allows courts to examine the decision-making of the Homeland Security agency. Despite pressure from the three liberal justices, Sauer maintained that the courts have no authority to review the decisions.
“None of those procedural steps required by the statue are reviewable. That’s your position?” asked Justice Sonia Sotomayor.
“Correct,” responded Sauer.
“What you’re basically saying is that Congress wrote a statute for no purpose,” Sotomayor said.
Justice Elena Kagan pointed out that the statute requires the secretary of Homeland Security to consult with the U.S. State Department about the conditions in the countries people are fleeing. She questioned what would happen if this consultation did not occur or if the State Department’s response was irrelevant, like commenting on a baseball game.
Justice Ketanji Brown Jackson posed a hypothetical about using a Ouija board for decision-making.
In response to these hypotheticals, Sauer remained steadfast. This led Sotomayor to reference a statement by President Trump describing Haiti in derogatory terms and associating illegal immigrants with TPS as harmful to America, suggesting the possibility of discrimination influencing the decision.
Sauer countered by noting that Kristi Noem, the DHS secretary at the time, did not mention race. Justice Jackson, the only Black woman on the court, questioned the administration’s stance on racial context, asking if a racial epithet could be ignored entirely.
Justice Amy Coney Barrett, who has two adopted Haitian children, sought clarification on whether TPS recipients could challenge the decision on racial discrimination grounds. Sauer seemed to concede this possibility.
Representing the Haitians, attorney Geoffrey Pipoly criticized the administration’s review process as a “sham,” attributing the termination of TPS to racial bias against non-white immigrants, particularly Haitians, while offering relief to white South Africans.
Justice Samuel Alito challenged Pipoly on the categorization of race, particularly questioning if Mediterranean people, including southern Italians, could be considered non-white. Pipoly responded that perceptions of race have evolved over time, noting southern Italians were not seen as white 120 years ago.
As the court session concluded on Wednesday, it was evident that despite President Trump’s frustrations with some of his appointed conservative justices over other issues, his influence was prevailing in this matter. This was underscored by the court’s 6-to-3 decision, effectively weakening the remaining provisions of the Voting Rights Act, once hailed as a key achievement in American democracy.
