Trump’s immigration policies may play hardball, but in two cases, the Court found that the plain meaning of the law written by Congress is on his side.
Trump’s immigration policies may play hardball, but in two cases, the Court found that the plain meaning of the law written by Congress is on his side.
T he Supreme Court this morning, in a pair of 6–3 opinions written by Justice Samuel Alito, gave the Trump administration’s border policies two more big wins. Both pared back humanitarian bases for admitting people into the country. Mullin v. Doe allowed the administration to revoke Temporary Protected Status (TPS) designations granted by the Biden administration — specifically for Haitians and Syrians, but the decision’s logic, which bars judicial review of revocations, would seem to compel the same outcome for Venezuelans. Mullin v. Al Otro Lado allowed immigration officials to prevent people from reaching the border to present asylum claims, because the law allows those claims to be presented by an alien who “arrives in the United States.”
Along with Tuesday’s decision in Blanche v. Lau, which strengthened the government’s power to exclude criminal aliens prior to their convictions, this was a clean sweep for immigration hard-liners. That may take some of the sting out of the Court’s pending decision in Trump v. Barbara, which could come as soon as Monday and is expected to be a loss for Donald Trump’s executive order limiting birthright citizenship.
No Means No
In the backdrop of Mullin v. Doe are the divergent attitudes of the Biden and Trump administrations toward TPS, but the actual ground of battle, as our editorials have emphasized, is the language of the TPS statute and whether courts should take the written law seriously.
The TPS statute, enacted in 1990, allows the president to designate particular countries as unsafe because of war, natural disasters, epidemics, or other temporary crises and therefore give their nationals temporary protection to stay within this country. Before the statute’s enactment, presidents would sometimes grant such protection as a discretionary matter but with no statutory authorization and, in effect, no rules. In that sense, TPS is like the 1977 tariff statute at issue in Learning Resources: It was designed to provide rules of the road for the executive to follow in responding to emergencies. Prior to 1990, the judiciary had treated these executive decisions as exercises of discretion that courts could not review.
Of course, nothing is so permanent as a temporary government program. For some countries, TPS has been continually in force now for decades, making a mockery of the “temporary” designation. Somalia has had a TPS designation for 35 years, and Nicaragua, Honduras, and El Salvador have been so designated for more than 25 years. Haiti received a TPS designation because of an earthquake 16 years ago.
The statute is written to reflect broad executive discretion. The secretary of homeland security “may” grant TPS to nationals of a particular country based on a series of statutory criteria but is under no obligation to do so. Several of the criteria explicitly reference conditions “temporarily” existing in the foreign country. By contrast, the statute requires TPS to be terminated if the secretary finds that the home country “no longer continues to meet the conditions for designation.” The law thus contemplates ongoing review — the secretary is mandated to conduct a new review at least once every 18 months — and DHS violates the law if it extends TPS when the conditions justifying it no longer exist.
That may be particularly important when a foreign tyranny is suddenly toppled and replaced by a new government, as has happened recently in both Syria and Venezuela. Syria’s designation was applied in 2012 because of the civil war that sought to topple the Assad regime, which ended with Assad’s departure in late 2024. Once TPS is revoked, the affected foreign nationals are given 60 days before they must either leave the United States or secure some other legal basis to stay. The 60-day provision was designed by Congress to accommodate the reliance interests of foreigners here temporarily, who have been given work permits but who knew from the outset that shelter on American shores was explicitly temporary.
The Biden administration tried to lock in its successor on these inherently fluid, temporary foreign policy assessments by granting TPS extensions, in some cases just days before Joe Biden left office. For example, Alejandro Mayorkas, the impeached-but-not-tried secretary of homeland security, extended TPS for Venezuela on January 17, 2025. By contrast, the Trump administration has terminated every TPS it has reviewed, 13 of them so far. Trump has been quite open about this as a deliberate policy.
Can courts review TPS designations? Congress didn’t think so. We know that because Congress said so in terms that could hardly be more explicit: “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.” The TPS litigation that has been ongoing since the outset of the second Trump term has dragged on this long because multiple lower court judges (including the Ninth Circuit) decided to judicially review what Congress said explicitly they may not judicially review. As Alito noted, judicial orders stopped Trump from ending TPS for Haiti, Syria, Venezuela, Burma, and Ethiopia and also prevented Trump from ending TPS for Haiti during his first term, in 2018.
Alito began with whether the law written by Congress means what it says, and his opinion is almost comical in attempting to take seriously the ridiculous contention that it doesn’t. “This text is clear, and its plain meaning is very broad,” he noted, and he explained why the word “determination” means decisions that the secretary is empowered and in some cases required to make.
So, no, that does not mean that there can still be challenges to the process by which those decisions are made, a ground that is frequently a pretext for second-guessing the merits. (Indeed, Alito has warned before against courts’ using judicial review simply to impose their own preferred outcomes on decisions properly delegated to executive agencies.) The “process” errors cited by the Syrian challengers clearly fit this mold: “Take Doe respondents’ argument that the Secretary inadequately consulted the State Department about conditions in Syria. In proceeding as she did, the Secretary, either personally or through her subordinates, made a series of procedural determinations: to communicate with the State Department by email, to send a terse and unspecific email, and to proceed to terminate Syria’s TPS designation after receiving a laconic answer.” And no, “determination” is not a technical term requiring the secretary to consider only the conditions in the foreign country and not U.S. interests, especially when that word isn’t used that way elsewhere in the statute.
And no, challengers can’t get judicial review of subsidiary decisions to consult particular officials or review particular facts by arguing that only the secretary’s final policy determination is exempt from judicial review. Somehow, Justice Elena Kagan, who surely knows better, bought this last argument in her dissent for the three liberals:
A court can adjudicate those claims without reviewing — or even thinking about — the Secretary’s later “determination[s]” concerning (i.e., “with respect to”) the “termination” of Haiti’s and Syria’s TPS “designation[s].”. . . That is because the claims concern a distinct matter — whether the Secretary did what the statute demands before she made her unreviewable decision. [Citation omitted.]
This argument that is laughable once one considers that the whole point of judicially reviewing what led to the final determination is to get a judicial order stopping that determination in its tracks. True, a statute may choose to carefully delineate what administrative decisions are and are not reviewable and under what standards. But to say that Congress exempted a decision from judicial review but allowed courts to issue injunctions against that decision is utterly divorced from reality. Surely, if that was what Congress intended, it would have said so.
Having a Policy Isn’t Unconstitutional
That didn’t end the case. The Haitians also argued, and convinced lower courts, that revoking TPS for Haiti after only 16 years violated the Constitution’s equal protection clause. The Court accepted for the sake of argument that a constitutional challenge to TPS revocation is not barred by the statutory ban on judicial review, at least where Congress hasn’t said explicitly that no constitutional challenges can be heard. The majority was somewhat fractured on this question. Justices Amy Coney Barrett and Neil Gorsuch declined, without written explanation, to join subpart III(A) of the Court’s opinion, which explained why the majority was deciding the equal protection claim without first analyzing whether it had jurisdiction to do so. Justice Clarence Thomas, in his concurrence, argued that no judicial review is available and added for good measure that he thinks the equal protection clause simply doesn’t apply to immigration decisions, given the long and continuous history of national-origin discrimination in our immigration laws from 1789 to the present.
As Thomas quipped, TPS itself is national-origin discrimination: “Today, applicants for immigration are treated differently based on their nationality as a matter of course. . . . And, respondents themselves seek a protection from deportation for people from Haiti, but not the neighboring Dominican Republic. If they are correct that the Court should apply equal protection precedents to immigration decisions, then the program that they benefit from may, ironically, be unconstitutional.”
The Court also didn’t decide whether to assess the equal protection challenge under a more deferential standard (as was done in Trump v. Hawaii (2018)) on the grounds that it involves foreign policy and broadly delegated immigration powers. (The challengers claim that a higher standard is at issue once people are admitted than when they are seeking entry — not exactly the stance that the immigration challengers took in Al Otro Lado, as we shall see.) Under either standard, the Trump policy was constitutional.
The theory is the usual one deployed by progressives in order to explain why Trump should be allowed to exercise fewer powers than other presidents: because he has bad motives. In this case, various statements were cobbled together from Trump and his former Secretary of Homeland Security Kristi Noem to show alleged racial animus against Haitians. Alito noted that the biggest problem with this argument is that Trump has pursued an open anti-TPS policy across the board and applied it uniformly to many different nations. While the challengers argued that various other Latin American, Asian, South Asian, African, and Middle Eastern nations who had their TPS revoked were all “non-white,” this doesn’t get very far, because almost every TPS designation was for countries outside of Europe. Ukraine is the only European country that currently has a TPS designation, and Bosnia-Herzegovina and Kosovo are the only other European areas that ever received such a designation. “The great majority of countries granted TPS have ranked among the poorest nations of the world, and no European nation falls into that category.”
Some flavor of the flimsy straw-grasping in Kagan’s dissent can be seen from its ending, which simply begs for more judicial delay:
True enough that TPS is a temporary program, and that it did not promise the plaintiffs never-ending humanitarian protection. But the law prevents the program from ending as it likely did here — without the required consultations about country conditions and, as to Haiti, with impermissible race-based considerations tainting the decision. At this juncture, both sets of plaintiffs ask for only one thing: that they may stay in this country while they continue to litigate their claims.
In Means In
If Mullin v. Doe required the Court to explain that no judicial review means no judicial review, Al Otro Lado required Alito to explain further that “in” means in.
The case involves the long-running Trump effort to stem the flow of pretextual asylum claims. The standard for asylum is a demanding one, but progressives have taken a flood-the-system approach: Get people into the country, file requests for asylum, insist that the claimants get to stay in the country while their cases are being heard, profit from the backlog this creates to allow people years to set down roots here and have citizen children, and only then maybe show up for the hearing instead of just vanishing into the country, after which an appeal can be filed to drag things out. The fraudulence of this strategy becomes apparent once one considers that courts reject upwards of 98 percent of all contested asylum claims. Any federal appeals judge or clerk can tell you how mind-numbing it is to plow through vast piles of meritless appeals.
The first prong of the Trump counterstrategy is the Remain in Mexico policy, which requires people with pending asylum claims to wait outside the country until asylum is granted. That’s a discretionary executive policy: In Biden v. Texas (2022), the Court let the Biden administration terminate Remain in Mexico, but that decision hasn’t stopped Trump from reinstating it.
The second prong, which admittedly is adopted with the clear intention of preventing asylum claims from being filed in the first place, is to interdict people before they reach the border and make a claim at a port of entry. As Alito explained, this policy was initially adopted at the end of the Obama administration and was premised on the mismatch between how many people wanted to file asylum claims and how many claims could actually be handled by the available border personnel — personnel who, as Blanche v. Lau illustrated, may have to make assessments on the spot that will be judicially reviewed at leisure:
In the spring of 2016, U. S. Customs and Border Protection (CBP) began to experience a surge of aliens seeking admission at ports of entry along the U. S.-Mexico border. The number of aliens seeking to enter sometimes far exceeded the number CBP could properly process. Long delays slowed the inspection process, and, in the meantime, CBP sometimes ran short of chairs, meals, and beds. The resulting conditions were often unsafe for aliens, and they rendered border facilities unsecure.
In November 2016, the Department of Homeland Security responded by adopting a policy of “metering” the number of arriving aliens whom CBP would inspect each day and allow to apply for asylum. To enforce the policy, officials stood on the U. S. side of the border and prevented entry into the United States by more aliens than the port could adequately process . . . [A 2018] memorandum empowered offices to “establish and operate physical access controls at the borderline, including as close to the U.S.-Mexico border as operationally feasible.”. . . But officers could not “discourage” an alien “from waiting to be processed” if the alien claimed “fear of return” or sought “any other protection.”
These policies were later rescinded under Biden, after a district court order stopped them, but the Trump administration has continued the court battle.
The legal question is whether aliens who are halted by the metering process nonetheless have a right to file asylum claims. That requires the Court to consider two provisions of the Immigration and Nationality Act (INA), both added in 1996: 8 U. S. C. §§1158(a)(1) and 1225(a)(1). Section 1225(a)(1) provides when an alien is an applicant for admission to the country; section 1158(a)(1) provides when that alien may apply for asylum. Section 1158(a)(1), using terms nearly identical to those in Section 1225(a)(1), defines an eligible applicant:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum. . . . [Emphasis the Court’s.]
An immigration officer who finds that an alien is found inadmissible is directed to “order the alien removed from the United States without further hearing or review.” So, not only does the phrase “arrives in the United States” appear in plain terms to mean arriving in the United States rather than simply getting as close to the border as possible before being stopped, every other clue in the language points the same way. The phrase is coupled with those aliens already “physically present in the United States”; it includes those who arrived “at a designated port of arrival” or were brought here after being detained in international waters; and an alien who is found ineligible is to be removed from the country, which is impossible if the alien is not already in the country.
Once again, it fell to Alito to explain the obvious, leaving the rest of us to wonder how anybody could refuse to accept it:
This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico “arrives in the United States” when he or she is still in Mexico. . . . In ordinary speech, no one would say that a person “arrives in” a place — for example, a house, a city, or a country — before the person enters that place. . . .
A person arrives in a geographic location only when he enters it. . . . Everyday examples confirm that understanding. A running back does not arrive in the end zone when he reaches the 1-yard line. A guest does not arrive in a house when he knocks on the front door. An army does not arrive in a city by encamping outside its walls. And a letter does not arrive in a mailbox while it remains in the mail carrier’s hand just inches away. [Emphasis in original; footnotes and citations omitted.]
Alito continued this parallel to reject the contention that being blocked from entering means that the alien has arrived “in” the place by arriving as far as he or she could and encountering the U.S. government:
The running back does not arrive in the end zone (and six points do not go up on the scoreboard) when he is tackled at the 1-yard line by the defense. The guest does not arrive in the house when the homeowner locks the door right before the guest tries to open it. The army does not arrive in the city when the city’s defenders repel the attack outside city limits. And the letter does not arrive in the mailbox when a dog assaults the carrier a step away from the mailbox.
Alito then marched through numerous other statutory examples of how the INA makes specific reference to people near the border, people off the coast, and people who attempt to enter — all terms not found here. And the contrasting terms “is physically present in the United States or who arrives in the United States” are not redundant, because the former provision includes those who have not just arrived, and the latter are governed by different processes for expedited consideration and possible immediate removal.
Justice Thomas once again concurred and would have ruled even more broadly on two points: on that the lower court decision had also violated a separate bar in the statute on class-wide injunctions, and on the ground that ordering the executive to bring particular aliens into the country could violate the separation of powers. The main dissent by Justice Sonia Sotomayor, again for all three liberals, emphasized that this bright-line rule could be manipulated by the executive branch and that the government has a judicially enforceable duty not to “unreasonably delay” processing asylum requests by people who reach our “threshold”:
The Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U.S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U. S. soil. They may do so even if the asylum seeker is at the threshold of a port of entry designated to receive all noncitizens who seek entrance into the country. Even if the port of entry has ample capacity to inspect that person, including an available asylum officer trained to process asylum applications. Even if the asylum seeker is certain to be persecuted, or killed, if she is turned away. . . . Any noncitizen arriving at our doorstep and seeking admission must be inspected and allowed to apply for asylum, regardless of whether her foot has crossed the threshold.
The key word there is “threshold,” which she repeats without bothering to consider why that word does not appear in the statute that Congress wrote:
It is natural to say that asylum seekers are arriving, i.e., reaching their destination, when they come to the threshold of a port of entry because that is where they can present themselves to an immigration official and apply for asylum. In this context, it does not make sense to say an asylum seeker’s arrival depends on whether she has taken a step across the border or her foot has not yet landed, or whether her hand is outstretched across the threshold or is still by her side; she is arriving in the United States for purposes of seeking admission.
She even has to admit that her analogies are strained ones. Take these one at a time.
For example, a train conductor’s announcement, “We are arriving in Penn Station,” might mean that the train is inside the station or merely that it has started slowing down half a mile away.
Yes, anyone who has ridden trains knows that they have their own misleading language. A train is considered to be arriving “on time” if it is not actually on time but less than six minutes away.
If someone said, “Call me when you arrive in Washington, D. C.,” it would be logical to call them once you have landed at DCA Airport, just across the river in Virginia.
That may be colloquial only because we think of Northern Virginia as part of D.C. as a region, but in no legal context would a person in Virginia be considered “in” D.C.
Nor would it be premature to say someone “arrives in” San Francisco while she is still driving on the Golden Gate Bridge.
Portions of that bridge are actually inside city limits, but also, Sotomayor here switches away from analogies to her native city because no New Yorker would say they are in the city until they have gotten to the other end of a bridge or tunnel. We know too well how long the wait can be.
A more fitting example might be the following. Imagine a movie theater policy that states, “Anyone who arrives in the theater may buy a ticket and all moviegoers must have their tickets scanned before entering.” If a person walks up to a ticket booth located just outside the theater, it would be unreasonable to think they could not buy a ticket under the policy because they are not “in” the theater yet. Perhaps the policy could have been clearer by using the preposition “at,” but everyone understands, from context, what the policy means.
Perhaps. Perhaps. Most of us understand that the usual order of things is to buy the ticket at the theater and then present it in the theater, which you can’t enter until you have your ticket. So with the movies, so with the nation.