In a decision issued on Wednesday, in the matter of Ramos v. Nielsen, U.S. District Judge Edward M. Chen, issued a temporary injunction blocking the Trump administration’s rescission of Temporary Protected Status (TPS) for Haiti, Sudan, Nicaragua and El Salvador. TPS allows foreign nationals who hail from countries experiencing natural disasters or ongoing armed conflict to remain in the U.S. temporarily, until conditions in their home country improve.
Judge Chen suggested that the decision to terminate TPS for nationals of these countries did not comply with the Administrative Procedure Act (APA) and was based on racism. Therefore, it likely violated constitutional due process and equal protection requirements. However, there are a number of serious flaws in Judge Chen’s reasoning.
First off, the provision of the Immigration and Nationality Act (INA) authorizing TPS specifically states, “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.” It’s hard to imagine Congress expressing its will more explicitly.
Nevertheless, Judge Chen held that this clause does not prohibit the courts from reviewing “general collateral practices or certain colorable constitutional claims.” He did not explain how it would be possible to evaluate any such claims without also calling into question the Secretary of Homeland Security’s rescission decree.
In addition, Judge Chen’s decision is filled with legally vacuous pronouncements such as:
- “Plaintiffs have also raised serious questions whether the actions taken by the [Secretary of Homeland Security] was [sic] influenced by the White House and based on animus against non-White, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.”
- The Secretary of Homeland Security, in deciding to terminate TPS for the Plaintiffs, “…changed the criteria applied by the prior administrations, and did so without any explanation or justification in violation of the Administrative Procedure Act.”
However, such statements are riddled with errors that should be obvious to first-year law students:
- The president is the Chief Executive of the United States. The entire Executive Branch works for him. Therefore, it is in no way improper if the White House influenced, or even ordered, the decision to terminate TPS for the plaintiffs.
- The Plaintiff’s equal protection claims are dubious, at best. As the Supreme Court held in Matthews v. Diaz, Congress “regularly makes rules regarding aliens that would be unacceptable if applied to citizens.”
- The Trump administration isn’t obligated to retain the TPS designation criteria used by prior administrations. TPS may be terminated whenever the Secretary of Homeland Security determines that it is safe for nationals of an affected state to return home or that their presence in the United States is not in the national interest.
- The Trump administration was not required to provide any explanation for or justification of its decisions. The relevant portions of the INA only require the Secretary of Homeland Security to publish a notice of termination, including the basis for the termination (g. it’s safe to go home) in the Federal Register.
This is only the latest example of a disturbing trend toward judicial arrogance in the immigration realm. We are rapidly morphing into a nation where an unelected judicial elite ignores the will of the people, expressed through the acts of Congress, in order to implement their open borders vision of the world. It’s high time for Congress to come to the aid of the president and push back.