The Supreme Court's Badly Flawed Ruling in the Haiti TPS Case

In my last post, I explained why today's Supreme Court Second Amendment ruling was right. In this one, I explain why its decision in Mullin v. Doe, the Haitian Temporary Protected Status case, is badly wrong. This case involves a challenge to the Trump Administration's decision to terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitian and Syrian migrants in the US. TPS status protects from deportation migrants who entered the US from countries where conditions such as war, violence, or natural disaster make it dangerous for them to return home.

The Haitian and Syrian plaintiffs argued (and lower courts agreed) that the Trump administration violated various procedural requirements in terminating their status. The Haitians also contended (correctly, as well shall see) that the withdrawal of TPS status in their case was motivated by racial and ethnic bigotry, and thus a violation of the Constitution for that reason.

The constitutional question here is somewhat similar to that in Trump v. Hawaii (2018), where the Court upheld Trump's first-term travel ban barring residents of Muslim-majority nations, despite extensive evidence Trump was motivated by anti-Muslim prejudice and discrimination. But, in that case, the Court ruled that a much lower standard of review applied than would normally be the case, because the context was a policy excluding non-citizens from entering the United States (in previous writings, I have explained why the Court was wrong to apply such a low standard; see here and here).

In this instance, the majority did not address the issue of whether a lower standard of review applies to withdrawal of legal status from migrants already in the US. Instead, Justice Alito's majority opinion concludes the plaintiffs should lose even under normal standards applicable to facially neutral laws and regulations that may have been enacted for unconstitutional discriminatory reasons. This conclusion is badly wrong.

Evidence of anti-Haitian bigotry motivating Trump and other officials involved in the decision is overwhelming. Justice Elena Kagan summarizes some of it in her dissent:

[T]he 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….

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]." 2 App. 802; see id., at 644. And: Haitians are also eating "other things too that they're not supposed to be." Id., at 698–699. And: Haitians in the United States "probably have AIDS." Id., at 698. And: Haiti is a "shithole country," which is "filthy, dirty, [and] disgusting." Id., at 698–699. And: Haitian immigration is "like a death wish for our country." Id., at 698. And: Haitians, along with some others, are "poisoning the blood" of our country. Id., at 698. 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?" Id., at 699. The majority briefly replies that those remarks are not "overtly racial," ante, at 21, 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.

I would add that even if these statements evidence ethnic rather than racial prejudice, the same result follows. Ethnic discrimination is unconstitutional for much the same reason as the racial kind. For example, it is unconstitutional for the government to discriminate against Hispanics, Jews, or Irish, even though these are ethnic rather than racial categories.

Under the Arlington Heights test, which Kagan and the majority both apply, once there is evidence that racial or ethnic prejudice motivated the policy in question, the burden of proof shifts to to government, requiring them to prove they would have adopted the same policy even aside from the these unconstitutional motives. Here, such proof will be difficult to come by, because the evidence is overwhelming that Haiti continues to be wracked by violence, thus making it unsafe for migrants to return there. Thus, there is no good reason to conclude things have actually changed there in a way that makes the TPS designation no longer necessary.

Justice Alito acknowledges that "[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development." But he nonetheless claims that there is  "a strong, race-neutral explanation of these officials' statements: the
present administration's general stance on immigration" and its general opposition to the use of the TPS program.

The problem here is that this "general stance" is itself heavily infected with racial and ethnic bigotry. Trump and other high-ranking officials have repeatedly engaged in racial and ethnic discrimination in their immigration policies, for example in limiting refugee admissions almost exclusively to white South Africans (an absurd decision that has no plausible non-racial explanation), and in promoting massive racial profiling in immigration enforcement. And it is notable that the President himself repeatedly condemns migrants based on their ethnic and cultural groups. Thus, the "general stance" actually accentuates rather than mitigates suspicions that the Haiti decision was based on discriminatory motives. At the very least, the Court should have recognized there is more than enough evidence to shift the burden of proof to the government.

On the statutory question, the majority relies on a provision of the TPS statute stating that "[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of
a foreign state under this subsection." The majority claims this means there can be no judicial review of any statutory issue here, at all. Justice Kagan's dissent argues that "determination" only covers factual conclusions about the need for TPS status or lack thereof, but not procedural requirements. The latter, she contends, are not really "determinations."

I am not entirely sure who is right on this point, and will not go into this debate in detail. But I will note that, at the very least, both sides have plausible arguments. Under the majority's approach, the executive would have totally unconstrained power to grant or withdraw TPS status to migrants from any country in the world, completely without limit - potentially tens or even hundreds of millions of people! That triggers the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." The unlimited power to grant and withdraw TPS status to millions of people is obviously  of "vast economic and political significance." And here, it is at the very least not completely clear whether the statute actually does that. Thus, MQD required the Court to rule that there are at least some constraints on the power in question.

If the statute really does give the president such unlimited powers, that raises constitutional nondelegation problems. There are at least some constitutional limits to Congress' power to delegate its authority to the president. And if there are any meaningful limits at all, unconstrained power to grant or deny residency and work rights to migrants from anywhere in the world surely breaches those limits. Elsewhere, I have explained why nondelegation principles apply in the immigration context, in part because the Supreme Court has ruled that immigration restriction is a congressional power.

At the very least, the Trump administrations' interpretation of the law raises serious constitutional problems. And that should have triggered the constitutional avoidance canon, which requires courts to interpret federal statutes in ways that avoid constitutional problems whenever it is "fairly possible" to do so.

As far as I can tell, the plaintiffs in the case did not raise major questions and nondelegation issues, though maybe the courts should have addressed them of their own accord (as they do bear on the statutory interpretation issues the plaintiffs did raise). Perhaps they can be addressed in a future case.

The practical implications of today's ruling are dire. Hundreds of thousands of Haitians and others are now subject to deportation. This will predictably cause grave harm to migrants forced to return to horrendous conditions in Haiti, Syria, and elsewhere. It will also harm many US citizens, who can no longer benefit from these migrants' important contributions to key sectors of the economy. For example, thousands of TPS holders (perhaps about 50,000) work as health care providers, and their expulsion is likely to harm patients and residents of elder-care facilities.

For supporters of expanded immigration rights, there is this silver lining to the Court's statutory ruling: under the approach adopted by the majority, future presidents will have virtually unlimited authority to grant TPS status to any and all migrants - totally unconstrained by either procedural or substantive rules.

In a solo concurring opinion Justice Clarence Thomas argues that the Equal Protection Clause of the Fourteenth Amendment only applies to state governments, and thus its protections against racial discrimination don't apply to federal government actions. He further argues that protections against racial discrimination generally do not apply to immigration policy. These points have radical implications that go far beyond the present case. Among other things, they would give the federal government a blank check to engage in racial and ethnic discrimination in immigration policy, and even beyond it. Thomas claims that federal racial discrimination against US citizens is still barred by the Citizenship Clause of the Fourteenth Amendment. But the dominant view at the time the amendment was enacted was that a wide range of racially discriminatory policies were still permissible, even as to citizens. That's one of the reasons why the Fourteenth Amendment had to be adopted in the first place.  Merely granting citizenship was not enough to protect Blacks (or any minority group) against racial and ethnic discrimination.

Sometimes, when Thomas advocates unorthodox ideas unsupported by other justices, he makes excellent points, as with his positions on a number of federalism and property rights issues. Other times, not so much. This is one of the latter cases. If time allows, I may have more to say about Thomas's opinion later.

In sum, this is a bad decision that is likely to have bad real-world effects, at least in the short run. In the long run, some of the effects might cut the opposite way - giving more pro-immigration administrations an opportunity to grant TPS  status without any limitations. But that possibility doesn't justify what the Court has done.

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