Supreme Court hears arguments on Trump’s effort to remove Haitian, Syrian migrants

The debate focused on whether the Trump administration followed the proper procedure and adhered to relevant laws.

The U.S. Supreme Court heard oral arguments in a legal challenge to efforts from President Donald Trump’s administration to remove the temporary legal status of Haitian and Syrian migrants.

Former Homeland Security Secretary Kristi Noem terminated the temporary protected status (TPS) designation for migrants from Syria, Haiti, and other countries. If the court rules that her actions are lawful, the administration could order the removal of more than 350,000 Haitians and 6,000 Syrians.

The Trump administration argued April 29 that the executive branch has broad discretion to terminate TPS for any country. The challengers, representing the migrants, argued Noem failed to follow the proper procedure and accused officials of unlawfully using racist beliefs about migrants to make their determinations.

The United States Conference of Catholic Bishops has urged the administration to extend TPS status for both countries.

Migrants’ lawyers challenge Trump

Ahilan Arulanantham, who argued on behalf of the Syrians, recognized that the administration has “broad” discretion in determining TPS status but argued that Noem failed to follow proper procedure in her decision-making.

Even though he said Noem can make the final decision to terminate TPS, he noted that the law requires Noem to consult with relevant agencies before deciding. He argued that Noem did not adequately consult with agencies prior to making the decision.

“We cannot challenge on the ground that she’s wrong,” Arulanantham acknowledged, ”… [but] what is reviewable is whether she actually asks anything and gets any information about country conditions.”

He said that one basis for Syria’s TPS designation was armed conflict, “but the secretary never consulted the State Department about the armed conflict.” Rather, he argued, “she terminated based on the national interest.”

“We don’t argue about the levels; we don’t argue about the amount,” Arulanantham said. “All we say is [there] has to be deliberation about a subject. They have to talk about country conditions.”

Justices questioned those arguments, with Justice Amy Coney Barrett pressing Arulanantham, asking him whether Noem could have consulted with the State Department on those subjects, and terminated the status, even if there was strong evidence in favor of extending it.

Arulanantham said she could have, which led Barrett to assert the procedure appears to simply be a “box-checking exercise.”

Justice Samuel Alito argued that if the administration has broad discretion in the “determination” of whether TPS status is extended: “If we apply the ordinary meaning of that term here, I really don’t understand how you can prevail.”

Justice Elena Kagan appeared sympathetic to the claim that the court could review whether the administration followed procedures but that scrutinizing whether Noem consulted with agencies about proper or improper subjects “seems harder to me than the procedural argument.”

Geoffrey Pipoly, who represented the Haitians, argued Noem’s review of the termination for his clients “was a sham,” saying the decision was “a preordained result driven by the president’s resolve to end TPS for Haiti no matter what.”

He accused the president of “racial animus toward non-white immigrants and bare dislike of Haitians in particular,” citing Trump’s remark that Haiti is an “[expletive]-hole country” and his assertion that migrants were “eating the dogs and eating the cats.”

Kagan questioned the argument, noting the Trump administration broadly scaled immigration back, stating: “I don’t quite see how that operates when all of these programs went.”

Alito pressed Pipoly on what constitutes “white” and “non-white,” and said: “You have a really broad definition of who’s white and who’s not white. As I said, I don’t like dividing people of the world into these groups.”

Justice Ketanji Brown Jackson defended the argument, noting that only predominantly non-white countries have TPS status.

‘Broad discretion’

U.S. Solicitor General D. John Sauer argued that the law does not permit judicial review of Noem’s decision to terminate TPS, arguing that Noem had “broad discretion” over how she considered whether to extend the status for those countries.

“Any determination — with respect to designation, extension, or termination — is not subject to judicial review,” Sauer told the justices.

Sauer said the secretary can determine which agencies are appropriate to consult and could even determine there are no proper agencies to consult. He accused the other side of simply claiming her consultation “wasn’t quite enough.”

“Seeking input is consultation, seeking advice from someone knowledgeable is a form of consultation,” he said, arguing the secretary has broad discretion to decide what constitutes consultation.

Sauer said these decisions are “traditionally entrusted to the political branches” and accused the district courts that halted TPS terminations of “appointing themselves junior varsity secretaries of state.”

He also rejected the allegations of racism, saying “not a single one of [Trump’s comments] mentions race or relates to race.” He said they always refer to “crime, poverty, welfare dependency, drugs, [and] drug importation,” among other issues.

Kagan challenged the suggestion there could be no judicial review at all, noting that Congress enacted a statute that requires consultation and “it set forth procedural steps that have to be followed.”

“The Constitution … [says] due process applies to any alien who lives in the United States,” she said. “It applies to all people living here. … They’re entitled to due process. Now Congress has given them a process. It may not be a court process, but that’s OK. It’s a process and you’re saying … it’s unreviewable whether the president has followed that process.”

Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies and a former immigration judge, told “EWTN News Nightly” that terminating the status would not remove every person who entered through TPS if the administration succeeds in court because some people have other forms of lawful status, such as a student visa.

“If they are here and they are not in lawful status and they donʼt have removal orders, [the Department of Homeland Security] is then going to have to take them all and put them into removal proceedings, get a removal order, and then remove them from the United States,” he said.