The Trump administration has launched its latest urgent complaint to the Supreme Court, asking the justices to immediately halt a lower court order that stops the administration from quickly ending humanitarian immigration protections — this time for Haitians.
The government’s application Wednesday comes after another recent one regarding Syria that the high court could rule on at any time. And it follows previous Supreme Court orders siding with the administration on lifting protections for Venezuelan nationals.
Continuing a theme throughout President Donald Trump’s second term, the Justice Department’s top Supreme Court lawyer, John Sauer, cast the lower court action he wants lifted as only the latest example of judges encroaching on executive authority.
“This is the government’s fourth application for a stay arising from lower courts’ refusal to allow the Executive Branch to terminate Temporary Protected Status (TPS) for various countries on the eve of the terminations taking effect,” Sauer said in Wednesday’s filing, noting that the previous ones “involved Venezuela (twice, resulting in stays from this Court) and Syria (currently pending).”
Sauer said all those cases and others in the lower courts involve “challenges that second-guess the underpinnings” of Kristi Noem’s decisions to terminate protections when she was the head of the Department of Homeland Security.
He said the “main variation” among these cases is that some of the lower courts, including in the Haiti case, “endorse a far-fetched and far-reaching equal-protection claim based on decisionmakers’ purported racial animus.” He warned that such a theory “threatens to invalidate virtually every immigration policy of the current administration.”
Ruling against the administration last month, U.S. District Judge Ana Reyes wrote that Noem “has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants,” but that, as homeland security secretary, she was “constrained by both our Constitution and the APA [Administrative Procedure Act] to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.”
The Biden-appointed judge noted that Trump had called Haiti a “s—hole country,” suggested Haitians “probably have AIDS” and complained that their immigration to the United States is “like a death wish for our country.”
A divided federal appeals court panel in Washington declined to lift the district court order last week. The two Democratic appointees in the majority said the government couldn’t show why it needed instant relief, whereas Haitians face “substantial and well-documented harms” if they lose protections, including “risk of detention and deportation, separation from family members, and loss of work authorization.” Trump appointee Justin Walker dissented, arguing that the government is irreparably harmed by courts intruding into executive policy. He also emphasized the “temporary” nature of temporary protected status.
The latest lower court loss led Sauer to ask not only that the Supreme Court lift the order protecting Haitians, but also that the justices take up the issue on full review before the appeals court has had a chance to issue a final ruling — an unusual procedural move called “certiorari before judgment.” Sauer had asked the justices for that same relief in the pending Syria-related application. In this latest application related to Haiti, he urged the court to grant certiorari before judgment in both appeals.
Haitian TPS holders will have a chance to weigh in before the justices act. But they weighed in on the Syrian case docket in an amicus brief, telling the justices that, if the administration has its way, more than 350,000 Haitian nationals could face deportation “to one of the world’s most dangerous countries” and would “face the threat of literal death if deported to Haiti while the appeal in their case is pending.”
In that pending Syria TPS appeal, Syrian nationals told the justices that the government “apparently needs urgent authority to send them to a country in the middle of an active war,” observing that Syria “has been caught in the crossfire as the military conflict in Iran has threatened to unleash a full-scale regional war.”
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