Extensive evidence shows that the decision to terminate Temporary Protected Status (TPS) for Haitian migrants was propelled by unconstitutional racial and ethnic prejudice, and the Court’s handling of the statutory issue in Mullin v. Doe contains notable flaws.
In my previous post I defended the Supreme Court’s recent Second Amendment ruling. Here I argue that its handling of Mullin v. Doe—the challenge to the Trump administration’s ending of TPS for large numbers of Haitians and Syrians in the United States—is seriously mistaken. TPS shields certain foreign nationals from deportation if they arrived from countries experiencing war, violence, or natural disasters that make return unsafe. The Haitian and Syrian plaintiffs asserted—and lower courts agreed—that the administration did not comply with procedural requirements in withdrawing TPS. The Haitians further argued that the decision to revoke TPS was driven by racial and ethnic prejudice, a constitutional fault that the majority failed to reckon with. The essential constitutional issue bears some resemblance to the one in Trump v. Hawaii (2018), where the Court sustained the first-term travel ban against residents of Muslim-majority countries, despite abundant evidence that the policy was tainted by anti-Muslim bias. Yet in that case the Court applied a notably deferential standard of review because the policy concerned excluding non-citizens; in my view, that was an invalid application of a lower standard. Here, the majority does not even address whether a reduced standard should apply to revoking status for migrants who are already in the country. Instead, Justice Alito’s opinion holds that the plaintiffs lose even under ordinary standards used to evaluate facially neutral laws that may have been enacted for discriminatory ends. That assessment is deeply flawed.
The record shows extensive evidence of anti-Haitian bias motivating Trump and other officials involved in the decision. Justice Elena Kagan highlights some of this in her dissent, noting that the Haitians’ claims are supported by a body of statements by the President that the majority refuses to print. Among the statements cited are remarks that depict Haitians in demeaning, dehumanizing terms, and that hint at views about Haitians’ health and moral character. The statements include characterizations of Haitians as engaging in morally repugnant acts, insinuations about disease or other alleged deficiencies, and repeated comparisons suggesting a fundamental inferiority. The majority dismisses these remarks as not overtly racial, but the connection to racialized stereotypes is hard to miss, given that Haitians are Black while many of the counterexamples involve people from predominantly white countries. Even if one treats these expressions as targeting ethnicity rather than race, the disqualifying impact remains: ethnic discrimination is unconstitutional for the same broad reasons as racial discrimination. Under the Arlington Heights framework, once there is credible evidence that prejudice based on race or ethnicity influenced a policy, the burden shifts to the government to show that the policy would have been adopted anyway in the absence of those improper motives. In this case, proving such a counterfactual would be difficult because the violence and instability in Haiti continue, leaving a strong case that TPS remains necessary to protect migrants from returning to dangerous conditions. There is thus no compelling basis to conclude that the policy would have been the same if race and ethnicity had not played a role.
Justice Alito briefly acknowledges that political discourse from prominent public figures has become more incendiary in recent years and has the potential to shock the public, but he still asserts that there exists a strong, race-neutral explanation for the officials’ statements—the administration’s broad stance on immigration and its general opposition to the TPS program. The problem with this theory is that the supposed “general stance” is itself heavily infused with racial and ethnic prejudice. Trump and other high-ranking officials have repeatedly acted in ways that reflect discriminatory biases in immigration policy, such as restricting refugee admissions in ways that disproportionately affect certain racial groups and endorsing aggressive racial profiling in enforcement efforts. Moreover, the President’s own condemnations of migrants often hinge on their ethnic or cultural identities. Consequently, the notion of a purely race-neutral stance fails to dispel the suspicion that the Haitian decision rested on discriminatory motives. At the very least, the Court should have recognized that the evidence suffices to shift the burden of proof to the government.
On the statutory issue, the majority leans on a clause in the TPS statute stating that there is no judicial review of any determination by the Secretary of Homeland Security regarding designation, termination, or extension of a designation for a foreign state under this section. The Court contends that this language forecloses review of any statutory question in this case. Justice Kagan dissents, arguing that the term “determination” refers to factual findings about the need for TPS, not to procedural requirements. In her view, the latter are not truly “determinations.” I do not claim to resolve the interpretive dispute definitively, and both sides present plausible points. What is clear, however, is that under the majority’s reading, the executive would enjoy nearly limitless power to grant or withdraw TPS status for migrants from any country, with little to no constraint—potentially affecting tens or even hundreds of millions of people. That reading invokes the major questions doctrine, which requires Congress to speak clearly when authorizing the executive to undertake decisions with profound economic and political consequences. The scope of authority described by the majority—unbounded power to confer or revoke TPS for people worldwide—certainly meets that threshold. The question then becomes whether the statute actually grants such unconstrained authority, and if it does, it raises serious concerns about unconstitutional nondelegation. I have elsewhere argued that nondelegation principles do apply to immigration policy to some extent, because immigration restriction lies within the purview of congressional power. At minimum, the Trump administration’s interpretation of the statute raises substantial constitutional red flags, and that should have prompted the Court to apply constitutional avoidance—interpreting federal statutes in ways that avert constitutional problems whenever possible. To my knowledge, the plaintiffs did not press nondelegation as a central issue, though it is related to the statutory questions they did raise, and it might be addressed in a future case.
The consequences of today’s ruling are grave in practice. Hundreds of thousands of Haitians and others face deportation, with predictably severe harm for migrants who would be returned to dangerous conditions in Haiti, Syria, and neighboring regions. The decision also harms U.S. citizens by removing workers who contribute significantly to essential sectors of the economy. For instance, tens of thousands of TPS recipients work in healthcare, and their removal would harm patients and residents of long-term care facilities. For those who advocate broader immigration rights, a troubling takeaway from the Court’s statutory ruling is that future presidents could wield de facto unlimited authority to grant TPS status to any migrant—without meaningful procedural or substantive constraints. While such a development might eventually accelerate the admission of new TPS beneficiaries under different political conditions, it does not justify the Court’s current approach.
In a separate solo concurrence, Justice Clarence Thomas contends that the Equal Protection Clause of the Fourteenth Amendment applies only to state governments, and thus does not constrain federal actions in immigration policy. He further argues that protections against racial discrimination generally do not govern immigration policy. This line of reasoning carries far-reaching implications that extend beyond the present case. Among other things, it would permit the federal government to engage in racial and ethnic discrimination in immigration policy without constitutional restraint. Thomas does acknowledge that the Citizenship Clause of the Fourteenth Amendment could bar discrimination against U.S. citizens, but the prevailing view at the time of the amendment’s enactment allowed a broad range of discriminatory policies so long as they did not strip citizenship. That history underscores why the Fourteenth Amendment was necessary in the first place: simply granting citizenship did not fully shield minorities from biased treatment. While Thomas sometimes identifies legitimate concerns on federalism and property rights, this is not one of those occasions where his analysis yields persuasive conclusions. Time permitting, I may return to his opinions later.
In sum, the decision is a poor one with tangible negative effects in the near term. In the longer term, some of its effects might inadvertently favor more immigration-friendly administrations by enabling broader TPS grants without clear limitations. Still, that potential does not vindicate the Court’s ruling.
