On Thursday, June 25, the Supreme Court in Mullin v. Doe made clear that Congress’s imposition over three decades ago of a bar to judicial review of the designation, or termination, or extension of a designation, of a foreign nation’s Temporary Protected Status (TPS) means what it says — a bar to judicial review (except possibly for constitutional claims). This ruling will facilitate the Trump administration’s efforts to terminate abusive TPS extensions by prior administrations. But it is a double-edged sword, for it will also facilitate future administrations’ ability to pursue abusive TPS extensions. Only Congress has the ability to fundamentally reform (if possible), or simply terminate, the TPS statute in order to curtail the endemic abuse by succeeding administrations of both parties.
When Congress created TPS as part of the Immigration Act of 1990 (now found at § 244 of the Immigration and Nationality Act), it included a strict bar to judicial review: “There 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” for TPS status.
Unfortunately, “no means no” is a phrase that federal courts usually honor in the breach when it comes to Congress’s preclusion of judicial review. As Justice Alito explained in his majority opinion in Doe, the district court in the underlying case had “found that the TPS judicial-review bar did not apply because plaintiffs challenged ‘how the Secretary went about making her determination,’ not the ultimate TPS termination decision itself” (emphasis added by the district court), and the D.C. Circuit Court of Appeals “likewise declined to issue a stay” of the district court’s decision and “noted that many other courts had held that they had jurisdiction to consider similar claims”.
As Justice Alito wrote, the Supreme Court’s task in Doe was to “consider[] whether respondents, who challenge the termination of [TPS] for aliens from Syria and Haiti, are entitled to orders postponing the terminations during litigation”. The Court “h[e]ld that they are not”.
Alito wrote for the Court that “We first consider respondents’ non-constitutional claims and conclude that we are barred from reviewing them. … [The statute’s bar to judicial review] is clear, and its plain meaning is very broad” and it “applies to all non-constitutional claims”.
Justice Alito “recognize[d] that ‘when a statutory provision is reasonably susceptible to divergent interpretation, we adopt the reading that accords with’ the traditional and basic principle that ‘executive determinations generally are subject to judicial review’” (some internal quotation marks omitted, quoting the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr). But he concluded that “here, the text of the TPS judicial-review bar very clearly overcomes the general presumption in favor of judicial review.” He then noted that “[r]espondents and the courts below offer several theories to overcome the plain meaning of the judicial-review bar”, but that “none is sound”.
As to constitutional claims, Alito wrote that “We have held that ‘where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.’” (Quoting the Court’s 1988 decision in Webster v. Doe.) However, “In this case, we need not resolve whether the TPS statute meets that clear-statement rule because we conclude that … respondents’ constitutional claim [that race was a motivating factor in the decision to terminate Haiti’s TPS designation] is unlikely to succeed on the merits.”
As I stated, the Supreme Court’s decision in Doe is a double-edged sword. As Justice Alito explained:
[R]espondents contend that our interpretation of the judicial-review bar could protect many shocking abuses of TPS. For example, a rogue Secretary in one fell swoop could issue a 50-year TPS designation, contrary to the 18-month statutory cap. Or a Secretary could terminate a TPS designation based on a coinflip.
Alito’s response was that:
[W]hether or not [some of these hypotheticals could be redressed by the courts], the fact remains that if a Secretary engaged in the sort of conduct that respondents imagine, Congress would have ample means to stop that abuse, including, for example, through the annual appropriations process. “Sometimes Congress decides that the political process is the proper forum for remedying improper conduct.” [Quoting Judge Bumatay’s dissent to the denial of reh’g en banc in the Ninth Circuit’s 2026 decision in National TPS Alliance v. Noem.]
In any event, I have a sneaking suspicion that the respondents would relish DHS issuing an illegal 50-year TPS designation. In all honesty, DHS was already trodding down that path (until the Trump administration). I testified before the House Judiciary Committee’s immigration subcommittee last December that “Congressional advocates at the time [of congressional consideration of TPS leading up to its enactment] were careful to emphasize that TPS would 1) convey a purely temporary status, and 2) require beneficiaries to leave once their country’s designation was terminated.” But that was not to be. Justice Alito explained that “Although designed to afford ‘temporary’ relief, TPS designations in practice have often lasted for decades. For example, the secretary designated Somalia in 1991, and that designation remains in effect 35 years later.” And he noted that three other countries (Nicaragua, Honduras, and El Salvador) “retain designations that are more than 25 years old”.
I explained in my testimony that:
The Biden administration’s extension of El Salvador’s designation earlier this year demonstrates why a country can remain designated for so long: DHS did not believe that present-day adverse conditions have to bear any relationship to the original qualifying event, such as a quarter-century-old earthquake. But DHS did believe that non-optimal climactic conditions were sufficient, even with no expectation of change in anyone’s lifetime.
I would have further stated (if my allotted five minutes for oral testimony had not run out) that such conditions can seemingly be cited in perpetuity, at odds with the statutory requirements of a temporary disruption of living conditions and a country being temporarily unable to handle adequately the return of its nationals.
Not to toot my colleague Mark Krikorian’s horn, but he told us so. At a March 4, 1999, hearing of the House Judiciary Committee’s Subcommittee on Immigration and Claims, Krikorian testified that: “The fallout from Hurricane Mitch in Central America is precisely the kind of natural disaster TPS was intended to address. If the up to 90,000 Hondurans who received this status actually go home after their TPS expires, then it may well have served its purpose.” But he stated bluntly that TPS “would simply be a lie if it were used as a back door to permanent immigration or a fig leaf to cover political unwillingness to enforce the law”. He predicted that “Few, if any, Hondurans or Nicaraguans currently covered by TPS will ever depart voluntarily or be removed,” as “Experience suggests that the grant of TPS to Hondurans and Nicaraguans is unlikely to be any different [from past grants] and that they probably will end up remaining.”
Again presciently, Krikorian wrote in the Federalist just days ago that “[t]he Trump administration is working to undo the damage caused by its predecessors” in part by “ending Biden’s grants of … TPS” and while “The anti-borders crowd is fighting this in court [it] will eventually lose.” But he quickly noted that to many administrations, TPS is simply “a way for presidents to ignore their duty to enforce immigration law and grant illegals work permits and Social Security numbers in the bargain”. Krikorian queried “[W]hat happens if Gavin Newsom or AOC or some other anti-borders politician wins the White House in 2028 or 2032 or 2036?” He concluded that “unless Congress changes the law, the next Democrat president will just restart the” abuse, that “the only way to prevent them from [doing so] is to change the law. And only Congress can do that.”
Krikorian bemoaned the fact that “Presidents have shown that they simply cannot be trusted to be responsible in using the discretion Congress has given them in immigration policy. Congress has given them an inch, and they’ve taken a mile — or a million miles, in the case of Biden.” He concluded therefore “that discretion must be taken away”, that “TPS must be repealed.” He explained that “There’s no need for [TPS anyway,] since, if there’s a natural disaster that makes it unsafe to deport people to a country, ICE can just suspend flights for, say, 60 days and then have another look.”