On Monday, the Supreme Court issued an order staying the nationwide injunction issued by a federal court in San Francisco that had barred the Trump administration from nullifying the Biden administration’s attempt to saddle its successor with postdated temporary protected status (TPS) for hundreds of thousands of Venezuelan aliens.
It is difficult to say what was more outrageous: the Biden administration’s attempt to extend the TPS status even though it would not be in office at the time of the extension, or the order by Judge Edward M. Chen, an Obama appointee, to block the Trump administration’s cancellation of the extension — not just in San Francisco but throughout the United States — notwithstanding that a crystal-clear congressional statute makes decisions about TPS a plenary executive call and deprives the judiciary of jurisdiction to review them.
As part of his derelictions of duty in failing to secure the border and willfully flooding the nation with millions of illegal immigrants — straining state and municipal education, law enforcement, and social-welfare budgets — President Biden granted TPS to about 350,000 Venezuelans. The first TPS grant, in 2021, was originally set to expire on September 10, 2025. The Trump administration has not disturbed that termination date. The second TPS grant, in 2023, was originally set to expire on April 2, 2025. That termination was not disturbed, either.
Nevertheless, in the final days of the Biden administration, Alejandro Mayorkas, Biden’s secretary of homeland security, attempted to extend both TPS grants until October 2026, even though the Biden administration would not be in office when the original grants expired. When the new administration took office, Trump Homeland Security Secretary Kristi Noem nullified this extension.
There is no doubt that Secretary Noem’s decision was within the plenary discretion of the executive branch to make, in addition to being the right call on policy grounds given the disastrous results of Biden’s non-enforcement of immigration law.
The governing statute, Section 1254a(b)(5)(A) of the immigration laws (Title 8, U.S. Code), unambiguously provides: “There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state.” (The statute refers to the “Attorney General” but the executive TPS authority may also be exercised by the homeland security secretary — see Section 557 of Title 6, U.S. Code.) Congress has vested the president and his administration with full authority to determine whether conditions in a foreign country warrant temporary asylum for its fleeing nationals. It is for the executive, not the courts, to weigh such matters as the danger to national security posed by an influx of insufficiently vetted nationals of a country that is hostile to the United States, is aligned with other anti-American regimes, and is plagued by gang violence.
Judge Chen theorized that, despite this congressional mandate, the Administrative Procedure Act endowed him not merely to second-guess the executive branch — on a quintessentially political matter of foreign policy in which the non-political judiciary branch lacks authority and institutional competence — but also to decree that his unaccountable assessment of the national interest was binding nationwide. In a similar act of judicial imperiousness, the Ninth Circuit directed that Chen’s injunction would remain in effect while the case was on appeal.
The Supreme Court erased the injunction on Monday. The fact that only the ultra-progressive Biden appointee, Justice Ketanji Brown Jackson, would have kept the injunction in place is testament to how indefensible it was. Not surprisingly, Justice Jackson simply noted her dissent without endeavoring to explain it.
There is an important qualification in the Court’s order: It is “without prejudice” to the ability of affected aliens to challenge Noem’s cancellation of TPS status to the extent that the secretary may claim that it invalidates various immigration documents they may have been issued. The Court referred to various communications from the government that TPS aliens typically receive: employment authorization documents (EADs); Form I-797 Notices of Action, which are official communications about the status of a request the alien has made (e.g., an application for work authorization); and I-94 forms, which serve as proof that the alien entered with the permission of the government and is authorized to remain in the United States for a set period of time.
In essence, the Court is saying its order only cancels Judge Chen’s attempt to prevent Noem from nullifying TPS as a matter of general policy. The Court is expressing no view on whether an individual alien who has already been issued specific permission to work or stay in the United States for a certain period of time has a viable challenge to Noem’s action as it affects that particular alien.
This raises the question of how quickly the Biden administration processed individual applications by aliens for various permits based on its attempted extension of the TPS status until October 2026. We suspect it is unlikely there are many such claims because the attempted extension happened in that administration’s closing days. And note: The Court is not saying aliens would win such challenges; just that its order on Monday does not foreclose the positing of such challenges.
There is rarely, if ever, any need in our system for judges to make national policy, and never any rationale for them to make immigration policy. The Supreme Court’s succinct order is a victory for the rule of law, separation of powers, and common sense.