Shrill but useful — useful because she is so shrill — Kristi Noem has elicited from a federal judge a valuable 83-page tutorial. The secretary of homeland security, her mind as closed as a clam, will not benefit from Judge Ana C. Reyes’s explanation of immigration law. Other Americans will.
On Dec. 1, Noem shared on X this thought: “I am recommending a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies” who “slaughter our heroes, suck dry our hard-earned tax dollars, or snatch the benefits owed to AMERICANS. WE DON’T WANT THEM. NOT ONE.” This was three days after Noem officially “determined” that she would terminate, effective Feb. 3, temporary protected status for about 353,000 Haitians who have found refuge here.
Last Monday, Reyes, of the U.S. District Court for the District of Columbia, the nation’s second-most important court, blocked Noem’s order. Reyes said the process that produced it was so riddled with lawlessness that the plaintiffs would likely prevail in a trial.
The five Haitian plaintiffs include a neuroscientist researching Alzheimer’s disease, a national bank’s software engineer, a laboratory assistant in a toxicology department, a college economics major and a full-time registered nurse. No leeches joined the suit.
The Trump administration of course argues (as it does regarding the president’s declaration of an “emergency” justifying tariffs) that Noem’s exercise of discretion is not subject to judicial review. Reyes, however, eviscerates what she calls Noem’s claim to “unbounded discretion to make whatever determination she wants, any way she wants.” Reyes says her court would indeed lack jurisdiction were the plaintiffs challenging Noem’s determination, but they are challenging how she made it.
Reyes says Congress meticulously detailed a temporary protected status process “to replace executive whim with statutory predictability.” Noem’s chaotic rationalizations for her action scream that they are pretexts for a predetermined policy. (She has terminated all 12 TPS country designations that have reached her desk. Reyes calls this unprecedented in the 35 years since the TPS program was established.)
Naturally, Noem says ending TPS will serve “national security” by somehow making it easier for “federal officials” to assess threats from “aliens attempting to enter the U.S. illegally.” Reyes dryly says: “But TPS holders are already in the country.” And, Reyes notes, Noem’s withdrawal of TPS would burden the immigration system by turning the 353,000 “lawful immigrants into unlawful ones overnight.”
Noem ignored the statute’s stipulation that she review conditions in Haiti “after” consulting with appropriate government agencies. Instead, Noem made her decision, then conducted a contemptuously perfunctory consultation. The law requires consultations with other agencies — plural. Her consultation consisted of a Department of Homeland Security staffer sending a two-sentence email to a State Department staffer, whose one-sentence reply, 53 minutes later, said Noem’s policy is fine.
“Congress,” Reyes says, “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.’” Noem shrugged off the statutory requirement of what Reyes calls a “good-faith, fact-based, country-specific review.”
Since 2010, severe earthquakes and hurricanes have exacerbated Haiti’s preexisting vulnerabilities. (Forty-five percent of Haitians already were undernourished, and 30 percent of children under 5 suffered chronic malnutrition.) Today, Haiti is a Hobbesian, gang-riven, cholera-menaced state of nature where life often is “solitary, poor, nasty, brutish, and short.”
Donald Trump has said Haitians “all have AIDS.” His secretary of state says Americans should avoid Haiti like the plague. Noem, however, blithely says “parts of the country” are “suitable” for the 353,000 to return to. She identified no part.
Reyes says the plaintiffs “are likely to succeed on their claim that anti-black and anti-Haitian animus” motivated Noem. She is, after all, theatrically abject in her subservience to a president who says illegal immigrants (TPS holders are legally here) are “poisoning the blood” of America, are “snakes,” “garbage,” “not people” and have “bad genes.” He says he prefers immigrants from “nice” countries like Norway, Sweden and Denmark. He has said Haitian immigration is “like a death wish for our country.” He has imposed travel restrictions on 19 countries, all of them predominantly non-White.
Ascribing racial animus to Noem, via the president she serves, is facially plausible but legally superfluous. Her TPS action is illegitimate because it is arbitrary, capricious and lawless. But her eagerness to send 353,000 into a maelstrom of disease, poverty, violence (including sexual violence) and death will not — cannot — further lower her stature.
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