216. Taking the TPS Cases Seriously

Two emergency applications seeking to put especially cruel Trump administration immigration policies back into effect are a referendum on the judicial role—and on the emergency docket, in particular.

Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

I wanted to use today’s “Long Read” to bring folks up to speed on the series of ongoing cases involving efforts by the Department of Homeland Security to revoke “Temporary Protected Status” (TPS) on a country-by-country basis for hundreds of thousands of immigrants from Haiti, Syria, Venezuela, and elsewhere—two of which have reached the Supreme Court through the Trump administration’s 33rd and 34th emergency applications. As I explain below, the TPS cases are critically important not just because they are the epitome of the rank cruelty (and, frankly, racism) behind so much of the Trump administration’s approach to immigration, or because what the Supreme Court does with them could immediately affect hundreds of thousands of people, but because they are also a referendum on the Supreme Court’s own work—especially the precedential force and effects (or lack thereof) of its two (unexplained) earlier grants of emergency relief in another TPS case, National TPS Alliance v. Noem, last May and October.

Indeed, it seems likely that the Court will (and, maybe even should) take the Trump administration up on its invitation to grant certiorari before judgment in one or both of the cases provoking the pending applications—so it can conclusively resolve these overlapping but distinct disputes after full-throated, plenary review. But whether that comes with or without stays that would allow the government to subject hundreds of thousands of immigrants to immediate arrest, detention, and deportation is itself a huge question—not just for those who would be directly affected, but for how the justices are thinking about the internal and external consequences of their earlier, unexplained orders in different cases.

More on all of this below. But first, the (other) news.

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On the Docket

The Merits Docket

It was a relatively quiet week on the merits docket. The justices granted certiorari in one new case in last Monday’s regular Order List—a petition from the Solicitor General in a technical but significant case about the interaction between the Administrative Procedure Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act with regard to the Air Force’s attempt to dispose of hazardous munitions by openly burning them on a beach in Guam. Justice Gorsuch also dissented from the denial of certiorari in Burnett v. United States—a case about whether, when a violation of a prisoner’s supervised release conditions leads to additional prison time that exceeds the statutory maxiumum for the original offense, any factual dispute relating to that violation must be resolved by a jury (beyond a reasonable doubt), or merely by a judge (under a preponderance of the evidence standard). The Third Circuit had held the latter, and Justice Gorsuch tells a persuasive story of why that seems inconsistent with the Court’s Sixth Amendment jurisprudence after and in light of Apprendi v. New Jersey. (Indeed, as regular readers of this newsletter will know, I think Justice Gorsuch is often very right about the Sixth Amendment.)

The Emergency Docket

It was also a quiet week on the emergency docket; the only full Court ruling came on Wednesday, when, over no public dissents, the Court denied a stay of execution to Texas death-row prisoner Cedric Ricks. Ricks was executed later Wednesday night.

Wednesday also saw the docketing of the Trump administration’s emergency application in the Haiti TPS case (Trump v. Miot), about which much more below. Although the Court initially noted that Chief Justice Roberts had called for a response by next Monday (March 23) at noon ET, it quickly (as in, three minutes later) changed that to today at noon—almost certainly reflecting an internal miscommunication, not a change of heart. But that especially quick turnaround certainly may augur a desire on the Chief Justice’s part to do something on both the Haiti TPS application and the fully briefed application in the Syria TPS case sometime this week.

The Week Ahead

Speaking of this week, we don’t expect a regular Order List today (as there was no Conference last week). But in addition to a decent chance at some movement in the Syria and Haiti TPS cases, we know for sure that the Court is taking the bench this Friday (March 20), and is expected to hand down one or more rulings in argued cases. The only cases left from October are the Louisiana redistricting cases (for which I still think it’s too early) and the Colorado conversion therapy case (for which it may not be).

Miscellaneous

On the miscellaneous front, I wanted to flag a fascinating (and, in my view, long-overdue) development from last week—when the Judicial Conference formally approved a proposal to create the “Supreme Court Advocacy Project,” something of a hub of Supreme Court experts and litigation resources to work with public defenders representing criminal defendants in cases before the Court, with an eye toward leveling the playing field between the Department of Justice and criminal defendants in cases before the Court. Ashley Robertson, currently an Assistant to the Solicitor General (and a fantastic lawyer) will be the project’s first director. I’ve written before, in multiple contexts, about the inequities baked into so much of the litigation before the Court. This isn’t a cure-all, but it’s a welcome step.

Finally, on a far smaller level, I wanted to flag (especially for D.C.-area readers) an awesome event this Thursday night at Gonzaga: The 39th Annual “Home Court” charity basketball game between the Georgetown and George Washington law schools. In addition to the main event (the student game, which tips at 6:30 p.m.), there’s also a faculty game at halftime—in which I may or may not be playing (as my high school basketball coach liked to say, “you can’t teach height”). All ticket sales and auction proceeds go to the Washington Legal Clinic for the Homeless.

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The One First “Long Read”: TPS Reports

“Temporary protected status,” known in shorthand as “TPS,” is exactly what it sounds like: It is a limited-duration authorization from the federal government for non-citizens from specific countries who might not otherwise have a legal basis for remaining in the United States to not just do so, but to work legally and access certain other benefits while holding TPS. Under a statute enacted in 1990 (a statute designed to reduce the President’s discretion to grant or deny protected status on spur-of-the-moment whims), Congress has authorized the Secretary of Homeland Security to designate countries that are eligible for TPS if she makes certain findings about the conditions there—many of which have to do with whether there are man-made or natural conditions that would make it unsafe for nationals of that country to return. And although the statutes give broad discretion to the Secretary to decide whether to designate a country for such humanitarian relief initially, they are far more rigid in the procedures the Secretary must follow when deciding whether to extend or terminate an existing designation—especially because of the reliance interests that such a designation will often have created.

Once a country is designated for TPS, the statute requires DHS to make individualized determinations about applicants’ eligibility. Applicants must show they have “been continuously physically present in the United States since the effective date of the most recent designation,” and they are ineligible for TPS if they have been “convicted of any felony or 2 or more misdemeanors” or could reasonably be regarded as a danger to the security of the United States. (In other words, TPS is something one applies for once their country of origin has been designated; it isn’t automatic.)

Thanks to the first requirement, the government isn’t limited to extending existing designations (which extends the status of those who have already received TPS under a prior designation); sometimes, it also re-designates countries—to restart the effective date clock (so that folks who arrived after the earlier designation can also apply for TPS). And thanks to the second requirement, the folks we’re talking about with regard to TPS are those who are not by any definition “the worst of the worst,” but are rather individuals who have not been convicted of serious offenses or otherwise pose any threat to their community.

According to the Congressional Research Service, as of this time last year, 17 different countries were covered by TPS designations, covering nearly 1.3 million holders (again, this is the number of individuals with TPS—not the number of nationals from those countries theoretically eligible for it). And then the Trump administration started pulling those back—not just by revoking designations (so folks could no longer apply for TPS), but in several cases, by purporting to vacate existing designations—with no notice to existing TPS holders. Countless non-citizens in this latter category went overnight from being legally allowed to reside and work in the United States to being subject to immediate arrest detention (including, in many cases, without bond), and removal.

And rather than provide persuasive explanations for why the negative country conditions that had justified TPS for those countries had abated, the government’s primary argument all along has been that Secretary Noem’s determinations are not subject to any judicial review—because of a statute that bars review of “any determination” of the Secretary with respect to designation, termination, or extension of TPS (critically, the statute says nothing about vacatur of TPS, and it sure seems to contemplate judicial review of other features of the TPS program).

The National TPS Alliance Case

Not surprisingly, those moves provoked immediate litigation. The first major case involved Venezuela. The National TPS Alliance, whose members include over 84,000 Venezuelan TPS holders, brought suit in federal district court in California, claiming that Secretary Noem had violated the Administrative Procedure Act both by vacating the Biden administration’s January 2025 extension of TPS for Venezuela and by terminating its January 2023 designation. The plaintiffs also claimed that her actions reflected unconstitutional discrimination against Venezuelans in violation of the Fifth Amendment’s Due Process Clause.

Last March, a district court held in a 78-page opinion that it had jurisdiction; that the plaintiffs had plausibly alleged that the Secretary’s actions were unlawful; and that the balance of the equities supported a preliminary injunction. The Ninth Circuit denied a stay. But on May 19, the Supreme Court, with no explanation, stayed the district court’s injunction—clearing the way for the administration to act against those Venezuelan nationals whose only basis for remaining in the United States was a prior grant of TPS.

The National TPS Alliance litigation didn’t stop with the Supreme Court’s stay. On September 5, the district court granted partial summary judgment to the plaintiffs—and set aside both the Secretary’s vacatur and termination of Venezuela’s TPS designation, and her partial vacatur of Haiti’s TPS designation (which was also part of the case). The Ninth Circuit again denied a stay. And the Supreme Court again granted a stay—once more, with no substantive analysis. All the Court wrote in October was that, “Although the posture of the case has changed, the parties’ legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.” And whereas only Justice Jackson had publicly dissented from the May order, all three Democratic appointees publicly dissented from the October stay—with Justice Jackson filing a solo opinion in support.

On January 28 of this year, a unanimous panel of the Ninth Circuit affirmed the district court’s grant of summary judgment. And just last Wednesday, the full Ninth Circuit denied rehearing en banc—with Judge Wardlaw (who had written the prior panel opinions) explaining on the panel’s behalf, quite persuasively (in my view), (1) why the courts have jurisdiction at least with respect to the vacatur of TPS; (2) why such vacatur was unlawful; and (3) why neither of the Supreme Court’s prior intervention necessarily resolved either of the first two points. Indeed, if you read exactly one opinion from these cases (I’m going to suggest that you read two), I’d start with the seven-page concurrence Judge Wardlaw filed last week.

The Dahlia Doe Case

While the National TPS Alliance (or “NTPSA”) litigation was proceeding apace, a separate suit was brought in federal district court in Manhattan seeking to block Secretary Noem’s actions to revoke and vacate TPS for Syria (for which there are roughly 6,100 current TPS holders). In that case (Dahlia Doe v. Noem), the district court agreed that Secretary Noem acted unlawfully and acted under the APA to postpone the effective date of her actions. The government appealed to the Second Circuit, and sought a stay pending appeal. But for messy procedural reasons, the stay took some time to resolve. On February 17, the court of appeals refused to issue a stay. It first explained why it didn’t think the Supreme Court’s stays in NTPSA required a stay in the Syria case. And on the merits, it held that the TPS statute “does not bar judicial review of the Secretary’s compliance with that statute’s procedural requirements.” It also explained why the government’s irreparable harm arguments were especially unpersuasive.

The Justice Department then sought emergency relief directly from the Supreme Court, arguing that the lower courts did indeed lack jurisdiction to provide any relief—and that, in any event, Secretary Noem hadn’t violated the APA. It also urged the Court to grant certiorari before judgment—to take up the merits of the district court’s postponement ruling before the Second Circuit.

The Miot Case

The third major case is, in some respects, the ugliest of all three. Miot v. Trump is a challenge to Secretary Noem’s termination of TPS for Haiti—a move that affects more than 350,000 individuals in the United States. I’ve previously flagged Judge Reyes’s 83-page ruling in the district court, which is the second opinion in these cases that I’d encourage folks to read (at the very least, the four-page introduction will give you a capsule summary). It walks through, in some detail, why the government’s jurisdictional arguments aren’t persuasive; why the government’s actions sure do seem to violate the APA; and, perhaps most significantly, the mountain of evidence that these actions are being taken out of animus against particular immigrants based upon their national origin—and not for any other reason. As Judge Reyes noted:

President Trump has referred to Haiti as a “shithole country,” suggested Haitians “probably have AIDS,” and complained that Haitian immigration is “like a death wish for our country.” He has also promoted the false conspiracy theory that Haitian immigrants were “eating the pets of the people” in Springfield, Ohio. Even after that (ridiculous) claim was debunked, he claimed they were eating “other things too that they’re not supposed tobe.” About two weeks after the Termination, he again described Haiti as a “filthy, dirty, [and] disgusting” “shithole country.” He stated: “I have also announced a permanent pause on Third World migration, including from hellholes like Afghanistan, Haiti, Somalia and many other countries.” Then continued, “Why is it we only take people from shithole countries, right? Why cannot we have some people from Norway, Sweden, just a few, let us have a few, from Denmark.” It is not a coincidence that Haiti’s population is ninety-five percent black while Norway’s is over ninety percent white.

10 days ago, a divided D.C. Circuit panel denied the government’s application for a stay—with Judges Pan and Garcia explaining in some detail why the government couldn’t meet the requirements for emergency relief; why the TPS jurisdiction-stripping statute doesn’t apply to all challenges to the government’s behavior vis-a-vis TPS; and why the equities in the other direction strongly cut against immediately subjecting more than 350,000 Haitians to arrest, deportation, and removal. The government then asked the Supreme Court for a stay in that case, as well (with the plaintiffs’ response due today)—which is how we got to where we are. (The DOJ application, rather remarkably, claims President Trump’s comments “raise no plausible inference of animus” but instead merely reflect “President Trump advocating for policies that curb immigration and decrease crime.”)

The Issues Before the Supreme Court

The first thing to say about these three cases is that they’re not alone. There has been separate litigation challenging the government’s TPS revocations for Afghanistan, Cameroon, Ethiopia, Honduras, Myanmar, Nepal, Nicaragua, and South Sudan (and I may be missing some). And even these cases aren’t all in the same procedural posture; some lower courts have purported to enjoin Secretary Noem’s revocations; others have postponed the effective date(s) of her actions; etc. So there are case-specific variations that I can’t possibly account for even in a 3,998-word newsletter post.

That said, it still seems abundantly obvious to me that the Supreme Court ought to step in and resolve at least three different questions here:

1. Whether and to what extent federal courts retain jurisdiction to review the Secretary’s compliance with the TPS statute’s procedural requirements and/or her claim that the statute authorizes vacatur in addition to revocation;

2. Whether, on the merits, the Secretary’s actions in any/all of these cases violated the APA; and

3. Whether, in any/all of these cases, the Secretary’s (and the President’s) clear and transparent animus against immigrants of these national origins can and should factor into the lawfulness of the government’s actions.

There is, of course, a fourth question lingering in these two applications—which is the government’s repeated (if not hyperbolic) claim that lower courts in these cases are all-but defying the two earlier (and completely unexplained) Supreme Court stays in National TPS Alliance. Given the detailed explanations from the Second and D.C. Circuits as to why those stays did not require stays in these cases (and from the Ninth Circuit about why those stays didn’t necessarily preclude further relief even in National TPS Alliance), it would be deeply problematic for the Court to endorse that reasoning—just as, in my view, it would be problematic for the Court to grant either or both of the applications for stays in Dahlia Doe and Miot—with or without (but especially without) an explanation as to why these cases warrant the same interventions.

There’s a longer conversation to be had about how much the President’s (and Secretary’s) clear animus can and should factor into these kinds of cases. But all of that just seems like further reason for the Court to try to do something new when it rules on these applications—to tread carefully, rather than reflexively letting the Trump administration do whatever it wants. We’ll find out soon enough.

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SCOTUS Trivia: Four-Justice Majority Opinions

I was reminded last week of the unusual but not unheard-of scenario in which the Supreme Court is sitting with seven (or even six) justices, and can therefore hand down a “majority” opinion with fewer than five justices signing on. (Given that a quorum is six justices, it’s not possible to have a ruling from five or fewer justices—although the Court does sometimes take the bench with fewer than six justices, which … shouldn’t be a thing.)

All of this is to say that there is a small but non-zero category of “four-justice majority opinions.” The most recent one of which I’m aware is Justice Kennedy’s opinion for a 4-2 majority in Ziglar v. Abbasi—an important (and problematic) post-9/11 Bivens case from 2017.¹ And I’d argue that the most well-known four-justice majority opinion is the relevant passage of Justice Stone’s opinion for the Court in Carolene Products—including famous footnote 4.² There was also a flurry of such rulings during the October 1971 Term—when the Court sat with seven justices for the first three months of the session before Justices Powell and Rehnquist joined the bench in January 1972.

Although no one disputes that the Court can hand down four-justice majority opinion, there are two interesting (and mostly open) questions about the rulings in such cases. The first is the suggestion, first made by Chief Justice Marshall in 1834, that, “except in cases of absolute necessity,” the Court should not decide a constitutional question unless there is a majority “of the whole court,” and should instead hold over such questions for re-argument before a fully constituted bench. What constitutes a “case[] of absolute necessity” is, of course, a matter of perspective. One possible distinction is between a Court that’s short-handed due to absences or soon-to-be-filled vacancies (where the short-handedness can be resolved by waiting/holding the case over) and one that’s short-handed due to never-to-go-away recusals.

The second is the related idea that four-justice majority opinions should carry relatively less precedential weight than majority opinions that speak for five or more justices (Justice Scalia wielded this argument, for instance, in criticizing Justice Sotomayor for relying upon Carolene Products.) Professor Jonathan Remy Nash at Emory Law has a (typically) brilliant 2009 article exploring the debate over the relationship between the quorum rule and precedential weight—and noting that the Court itself has been … inconsistent … in how it has handled this question.

Especially because four-justice majority opinions are few and far between these days, very little of consequence turns on these questions (versus in the early 1970s, when, as Nash notes, the precedential force of the 4-3 majority opinion in Fuentes v. Shevin provoked quite the contretemps). But there’s still a universe of interesting issues surrounding how the Court does and should operate when it’s short-handed—especially when it’s doubly or triply short-handed—whether in individual cases or for meaningful periods of time.

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1. Justice Sotomayor did not participate almost certainly because of her earlier service on the Second Circuit (including procedural votes while Abbasi was in that court); Justice Kagan likewise almost certainly recused because of her earlier service as Solicitor General (at a time when Abbasi was moving through the lower courts); and Justice Gorsuch had not yet been nominated (let alone confirmed) when the case was argued on January 18, 2017.

2. Justice Cardozo, who had a heart attack in late 1937 and a stroke in early 1938, did not participate. Justice Reed also did not participate—presumably because he had been involved in the litigation as Solicitor General prior to his confirmation. So only seven justices participated in the decision. And although the Court voted 6-1 to reverse the district court, Justice Butler concurred only in the judgment, and Justice Black joined all of Stone’s majority opinion except the critical (and famous) passage starting on page 152, including footnote 4.