When Congress says judges have no immigration jurisdiction, that means all judges, including progressive activist ones.
When Congress says judges have no immigration jurisdiction, that means all judges, including progressive activist ones.
M y weekend piece dealt with the misleading reporting about the Supreme Court’s suspension of an imperious ruling by an insubordinate Biden-appointed Boston federal judge — this time backed by a three-judge First Circuit panel that included two Biden-appointed judges — purporting to enjoin the Trump administration from deporting removable aliens to so-called third countries (i.e., countries to which they have no ties of citizenship, nationality, residence, or transit).
The Court did not green-light the policy, as declaimed by the legacy press, which is hostile for the same reason that animates the judges, their fellow progressives: They have open-border sympathies and are hard-wired to jeer enforcement of the immigration laws. Rather, the majority justices (in this instance, the Court’s six conservatives, opposed by its three progressives) merely imposed discipline on the lower federal courts: Immigration is a quintessentially political issue, implicating foreign policy and national security concerns that the Constitution leaves to the political branches; ergo, Congress writes the laws and the judiciary — which has no foreign policy or national security responsibilities — must stay its hand in areas where Congress says it has no jurisdiction. Congress has stripped district court judges of jurisdiction over removal issues, and it has expressly given the executive authority to deport to third countries aliens who have been ordered removed. The Court is reminding circuit and district judges that only Congress can change that law.
Flash forward to Monday, the first day of the Court’s new term. The most notable development of the day — although you have to search to find it — was the Court’s reaffirmation that it meant what it said: If Congress says the judiciary has no jurisdiction over an immigration issue, then judges are not at liberty to rule on, much less countermand, exercises of executive discretion related to that issue.
This time, the germane matter is not third-country removal but temporary protected status. In short, TPS is a statutory process by which Congress authorizes the executive to allow otherwise removable aliens to remain in the United States if certain dire conditions in their home countries make returning impractical.
The process has been repeatedly abused — e.g., the “temporary” relief for Somalia is now in its 35th year. The Trump administration wants TPS stripped to the bare statutory minimum, which it undeniably has discretion to do. At the end of the last term, in Mullin v. Doe (June 25, 2026), the Court ruled that two district judges — Obama-appointed Katherine Polk Failla in Manhattan and Biden-appointed Ana C. Reyes in Washington, D.C. — had no authority to issue the injunctions by which they prevented the Trump administration from ending TPS for aliens from Syria and Haiti. As Justice Samuel Alito wrote for the majority:
A provision of the TPS statute, 8 U. S. C. §1254a(b)(5)(A), provides: “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 under this subsection.” This text is clear, and its plain meaning is very broad. [Brackets in original; link to statutory provision added.]
There is a separate, long-running case involving the TPS designation for Venezuela, the largest group of aliens with that status. On its way out the door, the Biden DHS tried to tie the incoming administration’s hands by extending TPS for Venezuelans. The Trump DHS reversed the policy, but its decision was enjoined in March 2025 by Judge Edward M. Chen, an Obama appointee in San Francisco, who insisted that the decision announced by DHS’s then-secretary, Kristi Noem, was “unprecedented” and supposedly “predicated on negative stereotypes.”
On May 19, 2025, the Supreme Court stayed Judge Chen’s order. Yet, despite the Court’s directive, Chen decided he was at liberty to rule on the merits of the case and, on September 5, 2025, enjoined the administration yet again from ending TPS for Venezuelans. The Justice Department appealed to the Ninth Circuit, where a three-judge panel declined to disturb Chen’s ruling.
The Justice Department consequently asked the Supreme Court to stay it. As reported by SCOTUSblog, Solicitor General D. John Sauer argued:
The justices’ “prior order makes the lower courts’ denial of a stay indefensible,” and he pointed to what he characterized as “an ongoing parade of lower-court decisions that have threatened ‘the hierarchy of the federal court system created by the Constitution and Congress’ by disregarding or defying this Court’s stay orders.”
The Supreme Court’s 6–3 majority agreed. On October 3, 2025, it stayed Chen’s latest attempt to thwart the administration, observing that, even assuming Chen was correct that the posture of the case had changed, “the parties’ legal arguments and relative harms have not,” and therefore the “same result we reached in May is appropriate here.”
Nevertheless, on January 28, 2026, a Ninth Circuit panel composed of two Biden appointees (Judges Salvador Mendoza Jr. and Anthony D. Johnstone) and a Clinton appointee (Judge Kim McLane Wardlaw) undertook to affirm the Chen ruling the Supreme Court had stayed. The panel rationalized that the Trump DHS lacked the power to reverse a TPS designation that the Biden DHS had extended.
This summer, shortly after the above-described ruling in Mullin v. Doe, in which Justice Alito’s majority opinion stressed Section 1254(b)(5)’s jurisdictional bar against judicial interference in TPS determinations, the Trump Justice Department appealed, asking the Supreme Court to vacate the Ninth Circuit’s affirmation of Judge Chen’s wayward ruling. On Monday, the Court did just that.
As I said above, it’s not the easiest ruling to find because the Court’s ruling was not issued as an opinion or order related to the specific case. Instead, the justices announced their decision as part of a long string of brief dispositions granting or (mostly) denying certiorari review of pending cases customarily announced at the start of a new term. On this list, the relevant litigation is called Mullin v. National TPS Alliance. The Court’s succinct order states:
The [government’s] petition for a writ of certiorari is granted. The judgment [of the Ninth Circuit] is vacated, and the case is remanded to the [Ninth Circuit] for further consideration in light of Mullin v. Doe [citation omitted].
If the lower court heeds the Supreme Court’s instruction — never a sure thing when Trump administration enforcement of the immigration laws is concerned — Judge Chen’s ruling will be reversed. And that’s not because he’s wrong on the policy (although I think he is); rather, just as the Biden-appointed Judge Brian Murphy had no authority to tell the administration how to carry out the deportation of aliens ordered removed from the United States, the Biden-appointed Judge Chen had no authority to invalidate the administration’s decision to cancel TPS — which similarly will result in the deportation of removable aliens.
Much of President Trump’s unhinged rhetoric against the federal courts has been disgraceful, patently beneath the dignity of his office. But, as I’ve previously detailed, this is not a one-sided story: A number of progressive, activist judges are lawlessly undermining federal immigration enforcement for partisan, ideological reasons. When the Supreme Court spanks them, it is upholding separation of powers and restoring order in the judiciary, not rubber-stamping Trump policy.