The surprise wasn’t that the Supreme Court last month agreed to decide whether the Trump administration can revoke Temporary Protected Status for hundreds of thousands of Haitian and Syrian immigrants. Federal District Courts had deemed the revocations improper, and similar cases were pending as Kristi Noem, then the homeland security secretary, methodically revoked or denied extensions of grants of protected status that immigrants had received under previous presidents. The situation seemed tailor-made for the Supreme Court’s intervention.
The surprise in that Supreme Court order lay in what the court didn’t do. The justices turned down the administration’s request for an immediate pause of the district court decisions.
That means that while the Supreme Court considers the cases — Trump v. Miot and Mullin v. Doe have been consolidated for a single argument on April 29 — these Haitians and Syrians remain protected against deportation, free to work legally and live openly. In other words, at least for now, they get the benefit of their lower-court victories. That relief is something the Supreme Court has denied other winning parties by routinely granting the administration’s requests to put adverse decisions on hold.
The justices have failed to explain themselves in granting earlier stays and in denying this one. So we are left to guess at their reasoning and to wonder at the apparent unanimity of the latest order, which was issued without noted dissent.
There has been educated speculation. Mark Joseph Stern, an astute Supreme Court observer for Slate, suggested that Justice Ketanji Brown Jackson had shamed her colleagues into denying the stay with her withering dissent back in October, when the court stayed a decision invalidating the stripping of protected status from Venezuelans. Justice Jackson declared then that “I cannot abide our repeated, gratuitous and harmful interference with cases pending in the lower courts while lives hang in the balance.”
Those were strong words, but I don’t think that Justice Samuel Alito, for one, is capable of shame. I see a different reason for the court’s departure from its usual practice: The justices know the Trump administration is going to lose. With that knowledge, granting a stay to enable the deportation of some 350,000 Haitians and more than 6,000 Syrians, who would regain their protected status within months, became unthinkable.
Decades of writing about the Supreme Court have taught me that it’s foolish to predict the outcome of cases, and I have rarely done so. My prediction here rests on one word: procedure.
The records in both the Haitian and Syrian cases reveal a brazen violation of procedural requirements on the part of Ms. Noem. The 1990 law that established the Temporary Protected Status program requires consultation “with appropriate agencies” about conditions in a country before terminating protected status for the country’s nationals. But Ms. Noem “did not consult other agencies at all,” Judge Ana Reyes of Federal District Court in Washington, D.C., found in her opinion in the Haitian case in February.
Questioning the government’s lawyer, the judge learned that the consultation consisted of a single email exchange between the Department of Homeland Security and the State Department late on a Friday afternoon, while litigation was already underway. “Can you advise on State’s views on the matter?” the Homeland Security email asked. The response came 53 minutes later: “State believes there would be no foreign policy concerns with respect to a change in the T.P.S. status of Haiti.”
“That was it,” Judge Reyes wrote in evident disgust. She added: “Congress did not vest the secretary with Humpty Dumpty-like power to make the word ‘consultation’ mean ‘just what [she] chooses it to mean — neither more nor less.’”
A “‘meaningful exchange of information must occur,” the judge wrote. Noting that the State Department’s current advisory warns Americans not to travel to Haiti, Judge Reyes said that Ms. Noem’s determination that it was now safe for Haitians to return “runs counter to the evidence.”
Judge Katherine Polk Failla, in an order she read from the bench, made a similar finding on Ms. Noem’s termination of protection for immigrants from Syria without the required fact-finding. “The context in which the secretary’s decision was reached belies any notion of considered and good-faith review of country conditions,” she said.
Both judges concluded that the secretary’s termination of protection was most likely “arbitrary and capricious” within the meaning of the Administrative Procedure Act.
Procedure mattered to two federal district judges. Why do I think it will matter to the Supreme Court? Because there is strong evidence that it does.
The Constitution gets star billing in discussions of the Trump administration’s flagrant overreach, as in the pending challenge to the president’s rejection of birthright citizenship. But procedural irregularity has proved to be the administration’s Achilles’ heel in dozens of adverse court decisions. These are the first such cases to reach the Supreme Court on the merits since Mr. Trump took office again. Being first in line makes these cases even more important than they might appear. The justices’ response to the sordid record of the administration’s behavior will set the tone for the cases to come.
The Administrative Procedure Act, which turns 80 this year, was enacted by Congress to establish rules for the behavior of what in 1946 was a rapidly growing administrative state. While it’s little known to the general public, the justices know it intimately. It is the bread and butter of Washington law practice, the juncture where the citizen and the government meet.
It is a statute with many parts, including the Freedom of Information Act, but in operation it places a simple requirement on federal agencies, expressed in many Supreme Court decisions as “reasoned decision-making.”
Seven years ago, Chief Justice John Roberts explained that requirement in his majority opinion that barred the first Trump administration from adding a citizenship question to the 2020 Census. The reason the administration gave for asking about citizenship — to enhance the government’s ability to protect Black and other minority voters under the Voting Rights Act — was a sham, the chief justice concluded. He wrote: “Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
The next year, Chief Justice Roberts invoked the Administrative Procedure Act to block the Trump administration’s effort to cancel the DACA program, which protects undocumented immigrants who were brought to the United States as children. His opinion made clear that while the administration could end the program, it could not do so by concocting after-the-fact justifications or by a decision-making process that failed to take DACA’s benefits into account.
Solicitor General D. John Sauer may argue, as he did in his application for a stay, that one justification for rescinding protection for the Haitian immigrants is to eliminate what he called the “pull factor” that encourages still more Haitian immigration. If he does, I’m eager to see the chief justice’s reaction. As Judge Reyes pointed out, that argument is nonsense; the Temporary Protected Status designation applies only to “individuals who are already physically present in the United States at the time of designation.”
In 1943, Justice Felix Frankfurter wrote a majority opinion on the rights of criminal defendants, McNabb v. United States. It held that a confession could not be admitted as evidence in a federal criminal trial if the suspect had not been brought promptly before a judge. Justice Frankfurter ended his opinion with this observation: “The history of liberty has largely been the history of observance of procedural safeguards.”
Justice Ruth Bader Ginsburg loved that line and adopted it as a watchword, quoting it in an interview a few months before she died in 2020. If anything, the sentiment is even more pertinent now. What, after all, would be its opposite? “The history of democracy’s failure has largely been the history of ignoring procedural safeguards”? I don’t think the Supreme Court wants to go there. I don’t think it will.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008.
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