SCOTUS
Weighs Whether Temporary Status For Foreign Migrants Is Actually Temporary
By:
Shawn Fleetwood April
30, 2026 thefederalist.com
SG
Sauer argued that the law governing TPS bars courts from reviewing a
president’s decision to designate or terminate TPS status for groups of foreign
nationals.
The
U.S. Supreme Court is gearing up to effectively decide whether temporary status
for hundreds of thousands of foreign nationals residing in the United States is
actually temporary.
The
high court held oral arguments on Wednesday in a pair of consolidated cases
known as Mullin v. Doe and Trump v. Miot, which center around
Trump’s revocation of Temporary Protected Status (TPS) for approximately 6,000 Syrian and 350,000 Haitian
nationals, respectively. Both groups of migrants are currently living in
America under the TPS program, which may be used by the executive branch to offer temporary
residency to foreign nationals from countries experiencing natural disasters,
violent conflicts, and other “extraordinary and temporary conditions.”
The
Trump administration’s efforts to end TPS for the aforementioned groups were halted by lower courts. This was done despite SCOTUS previously pausing similar injunctions in a separate TPS
case involving Venezuelan nationals.
Arguing
on behalf of the Trump administration, U.S. Solicitor General John Sauer contended that a provision
within the Immigration and Nationality Act that governs TPS prohibits any form
of judicial review “of any determination by the [DHS] secretary with respect to
the designation or termination or extension of a designation of a foreign state
for Temporary Protected Status.”
“That
provision means what it says … [and] bars judicial review of both the
secretary’s ultimate decision whether to designate, extend, or terminate, and
of each antecedent step along the way to that determination,” said Sauer, who
added that “even if [challengers’] claims are not barred [by judicial review],
they are meritless.”
The
solicitor general’s biggest pushback came from the court’s more outspoken
Democrat appointees.
Associate
Justice Ketanji Brown Jackson kicked off the inquisition by pressing Sauer on
what, if any, executive actions regarding TPS are reviewable by federal courts.
The Biden appointee’s back-and-forth with the solicitor general ultimately
prompted Associate Justice Sonia Sotomayor to join the fray and pile on with
questions about the scope of judicial review as it relates to the TPS program.
Sotomayor’s
refusal to allow Sauer to respond one of her queries on the issue prompted Chief
Justice John Roberts to interject and permit Sauer to answer. It was sometime
after this exchange in which Sotomayor and Jackson referenced President Trump’s
past “sh-thole countries” remarks to push the narrative that, as the former put
it, “a discriminatory purpose may have played a part” in the administration’s
decision to end TPS for the various groups in question.
Associate
Justice Elena Kagan took a more sober-minded approach, pressing Sauer about his
argument that “all the things that the statute says that the secretary is
supposed to do in order to determine country conditions are unreviewable.” She
also probed him about whether, under his view, the secretary is required to
consult with relevant administration officials about a country’s conditions
before taking specific actions on TPS, as well as the substance of that
consultation.
Sauer
also fielded questions from several of the court’s Republican appointees.
While
Associate Justice Clarence Thomas asked if Congress possesses the power to
limit TPS regulations if the executive “has constitutional authority to do this
in a discretionary way,” Roberts questioned whether Sauer’s argument amounts to
a “significant expansion” of the court’s holding in Trump v. Hawaii
(2018). That was the case in which a majority effectively upheld Trump’s travel
restrictions on several countries.
Meanwhile,
Associate Justice Amy Coney Barrett pressed the solicitor general on
respondents’ “procedural objection” argument and what “standards a court would
apply when reviewing the sufficiency of the consultation” issue if the court
were to rule against the government’s argument that the matter is not subject
to judicial review. Associate Justice Brett Kavanaugh, on the other hand, asked
Sauer to “explain the reasons why Congress would have barred judicial review as
broadly” as he claimed.
The
conservative justices’ more pressing concerns, however, seemingly came during their
questioning of the attorneys representing the respondents, Ahilan Arulanantham
(Syrian case) and Geoffrey Pipoly (Haitian case).
Both
lawyers argued that the legal provisions governing TPS do not bar courts from
reviewing an administration’s actions on the program and that the government is
required to undertake certain steps (ex. consultation and assessment of a
country’s conditions) before implementing such policies. They further claimed
that the Trump administration did not adhere to this purported process, with
Pipoly separately arguing that the president’s decision to end TPS for Haitians
was racially motivated.
Thomas
extensively probed Arulanantham and (to a lesser extent) Pipoly on how they
interpret the statute at hand’s “jurisdiction-stripping provision.” The Bush 41
appointee’s questioning of the latter led Roberts to ask the left-wing attorney
if whether, “more generally, there was anything [Arulanantham] said that you
disagree with,” to which Pipoly replied, “No.”
In
her questioning of Arulanantham, Barrett posed a hypothetical in which a DHS
secretary decides to terminate TPS for Syria even after she consulted with
members of the State Department, who told her that conditions in the country
“remain terrible.” Testing how far challengers’ argument would go, the Trump
appointee asked if such a decision could be reviewed by courts.
Arulanantham
acknowledged that they “could not challenge on the ground that [the secretary]
is wrong and the State Department is right” but added that “what is reviewable
is whether she actually asks anything and gets any information about country
conditions.” The response prompted Barrett to pose a question highlighting the
absurdity of such a standard.
“Is
this going to get you very much? I mean, if it’s just kind of a box-checking
exercise, I mean, why would Congress permit review of the procedural aspect
when, really, what everybody cares about much more is the substance?” Barrett
asked.
Another
particularly notable moment occurred when Kagan was questioning Pipoly about
how he squares his claims that the president’s termination of TPS for Haitians
is racially motivated with the notion that TPS programs are being revoked
“across the board.” The left-wing attorney circled back to the previously cited
Trump comments to subsidize his argument — which Jackson eagerly piled onto.
The
argument didn’t appear to sit well with Associate Justice Samuel Alito, who
interjected and forcefully challenged the attorney on his claims.
“I
don’t like dividing up the people of the world arbitrarily into three racial
groups, but you … say [the groups whose TPS is being revoked are] all
non-white,” Alito said. “But do you think that … if you put Syrians, Turks,
Greeks, and other people who live around the Mediterranean in a lineup, do you
think you could say … that all of them, are they all non-white?”
The
Bush 43 appointee also expressed concerns about the potential consequences
arising from Arulanantham’s judicial review arguments.
Associate
Justice Neil Gorsuch also appeared skeptical of Arulanantham and Pipoly’s
arguments.
A
decision in Mullin v. Doe and Trump v. Miot is not expected until
later in the court’s 2025-2026 term, which is set to end in late June-early
July.
