The Supreme Court's conservative majority seemed ready Wednesday to allow the Trump administration to potentially proceed with mass deportations of more than a million foreign nationals, including those from Haiti and Syria, who live and work legally in the United States.
Until now these individuals have been accorded temporary legal status because their safety is imperiled by war or natural disasters in their home countries.
Congress enacted the Temporary Protected Status program in 1990, and every president since then — Republican and Democrat — has embraced TPS. President Donald Trump, however, is trying to end it.
On Wednesday his solicitor general, D. John Sauer, told the justices that the statute clearly bars any court review of the administration's decisions. And he dismissed the idea that a separate law established to provide procedural fairness does not allow the courts to review the Homeland Security agency's decision-making either. Pressed by the court's three liberal justices, Sauer insisted that the courts cannot review anything.
"None of those procedural steps required by the statue are reviewable. That's your position?" asked Justice Sonia Sotomayor.
"Correct," responded Sauer.
"What you're basically saying is that Congress wrote a statute for no purpose," Sotomayor said.
Justice Elena Kagan noted that under the statute the secretary of Homeland Security is supposed to consult with the U.S. State Department about what the conditions are in those countries that people have been forced to flee. What if she didn't do that at all, Kagan asked. Or what if she asked, but the response from the State Department came back: "Wasn't that baseball game last night great!"
Justice Ketanji Brown Jackson asked what would happen if the secretary used a Ouija board to make decisions?
To all these hypotheticals, Solicitor General Sauer stood firm. That prompted this from Sotomayor: "Now, we have a president saying at one point that Haiti is a 'filthy, dirty, and disgusting s--thole country.' I'm quoting him. He declared illegal immigrants, which he associated with TPS, as poisoning the blood of America. I don't see how that one statement is not a prime example … showing that a discriminatory purpose may have played a part in this decision."
Sauer pushed back, noting that Kristi Noem, the then-DHS secretary, had not mentioned race at all. That prompted this response from Justice Jackson, the only Black woman on the court, "So the position of the United States is that we have an actual racial epithet that we aren't allowed to look at all the context."
Justice Amy Coney Barrett, the mother of two adopted Haitian children, interjected at that point to clarify the administration's position. Are you conceding that individuals with TPS status could bring a challenge based on race discrimination? she asked.
Sauer appeared to concede the point.
Representing the Haitians, lawyer Geoffrey Pipoly described the administration's review as "a sham."
"The true reason for the termination [of TPS status] is the president's racial animus toward non-white immigrants and bare dislike of Haitians in particular," Pipoly said. "The secretary herself described people from Haiti" and from other non-white countries as "killers, leeches, saying, 'We don't want them, not one,'" while "simultaneously enacting another humanitarian form of relief for white and only white South Africans."
That was too much for Justice Samuel Alito who asked Pipoly, "Do you think that if you put Syrians, Turks, Greeks and other people who live around the Mediterranean in a line-up, do you think you could say those people are … non-white?"
An uncomfortable Pipoly resisted categorizing each group until Alito got to his own roots.
"How about southern Italians?" Alito inquired, prompting laughter in the courtroom.
Responded Pipoly: "Certainly 120 years ago when we had our last wave of European immigration, southern Italians were not considered white. … Our concept of these things evolves over time."
At the end of Wednesday's court session, one thing was clear: President Trump may be furious at some of the conservative justices he appointed for invalidating his tariffs, but for the most part, he is getting his way. Especially in light of the court's 6-to-3 decision, announced Wednesday, which effectively guts what remains of the landmark Voting Rights Act, once celebrated as a signature achievement of American Democracy.
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