Breaking News: Supreme Court Rejects Challenges to Lifting of TPS for Haitians and Syrians

The Supreme Court Today decided Mullin v. Doe and Trump v. Miot, consolidated cases raising the question whether the Trump administration can lift relief known as Temporary Protected Status (TPS) for Syrian and Haitian nationals. President Trump has systematically lifted TPS for nationals of many nations, which has ended their legal status and subjected them to removal from the country. Last year, the Supreme Court twice stayed rulings by lower courts that barred the Trump administration from ending TPS for migrants. Presidents Biden and Trump have tinkered with TPS in their respective immigration approaches.

As Amy Howe observed for SCOTUSBlog.com, it was not clear, after the oral arguments, whether the Trump administration would prevail in its efforts to strip Haitian and Syrian nationals of TPS.  But it did – and resoundingly so.

Justice Alito announced the judgment of the Court and delivered the opinion of the Court except as to Part III-A. Chief Justice Roberts and Justices Thomas and Kavanaugh joined his opinion in full. Justices Gorsuch and Barrett joined except for Part III–A. Part III-A. addresses the equal protection claim. Justice Thomas filed a jarring concurring opinion.

Justice Kagan filed a dissenting opinion, in which Justices Sotomayor and Jackson joined.

Justice Alito for the majority wrote:

"In these cases, we consider whether respondents, who challenge the termination of . . . TPS . . . for aliens from Syria and Haiti, are entitled to orders postponing the terminations during litigation. We hold that they are not. The TPS statute plainly bars consideration of respondents’ non-constitutional claims. . . . The sole constitutional claim before us will likely fail. Citing statements made by President Trump and former Secretary of Homeland Security Kristi Noem, one set of respondents advances an equal protection claim that Haiti’s TPS designation was terminated because of the racial makeup of that country’s population. But, ironically, one of respondents’ other arguments undermines the equal protection claim by offering a strong, race-neutral explanation for Haiti’s termination: namely, that the current administration, which has terminated every TPS designation that has come up for renewal, simply opposes the TPS program, at least as it has been implemented in the past. For these reasons, the District Courts erred in granting interim relief."

In addressing the claims that the lifting of TPS for Haitians was racially discriminatory, Justice Alito wrote for the plurality in Part III-A.: "None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications."

Justice Thomas concurred in a jarring opinion. "I join the opinion of the Court in full. I write separately to address two more fundamental problems with the Miot respondents’ suit. First, their equal protection claim, while meritless under the Court’s precedents, was also beyond the District Court’s jurisdiction. Second, even assuming jurisdiction, the equal protection claim fails for the additional reason that aliens have no equal protection rights against the Federal Government." (bold added). This would be a monumental change in the law.

Justice Kagan, joined by Justices Sotomayor and Jackson, authored a dissent. Besides disagreeing with the majority on the lifting of TPS, she has this to say about the Equal Protection claim:

"The discriminatory-purpose inquiry is predominantly factual, so a lower court’s conclusion must stand unless clearly erroneous. [citation omitted]. Here, the District Court found that the existing record (which future discovery could supplement) `strongly suggests that [the] decision to terminate Haiti’s TPS designation was motivated, at least in part, by racial animus.' [citation omitted] (observing that the President’s statements `repeatedly invoked racist tropes of national purity,' and evinced `anti black' animus). Under clear-error review, that finding governs so long as it is `plausible.' [citation omitted]. It is more than plausible: Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.) So here are some of those statements. Haitians are `eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].' [citation omitted]. And: Haitians are also eating `other things too that they’re not supposed to be.' [citation omitted]. And: Haitians in the United States `probably have AIDS.' . . . And: Haiti is a `shithole country,' which is `filthy, dirty, [and] disgusting.' [citatationomitted]. And: Haitian immigration is `like a death wish for our country.' [citation omitted]. And: Haitians, along with some others, are `poisoning the blood' of our country. [citation omitted]. And: `Why is it we only take people from shithole countries' like `Haiti [and] Somalia'? `Why cannot we have some people from Norway [and] Sweden?' [citation omitted] The majority briefly replies that those remarks are not `overtly racial,' . . . but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community. No very `sensitive inquiry,' . . . , is needed to see them for what they are, . . . ; judges, as we often say, are `not required to exhibit a naiveté from which ordinary citizens are free,' [citation omitted]. The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country."

More analysis to follow.