Live by the EO … die by the EO. Or so the Supreme Court says today, anyway — to the extent they said much at all.
In an unsigned order that seven of the justices backed, the court stayed a district court decision that prevented the Trump administration from revoking Temporary Protected Status (TPS) from over a half-million migrants in the US. The court’s order allows the Department of Homeland Security to initiate removal processes for these migrants even while a First Circuit appellate panel considers the case on appeal.
The New York Times sounds less than pleased by the decision:
The Supreme Court on Friday allowed the Trump administration, for now, to revoke a Biden-era humanitarian program intended to give temporary residency to more than 500,000 immigrants from countries facing war and political turmoil. …
The ruling, which exposes some migrants from Cuba, Nicaragua, Venezuela and Haiti to possible deportation, is the latest in a series of emergency orders by the justices in recent weeks responding to a flurry of applications asking the court to weigh in on the administration’s attempts to unwind Biden-era immigration policies.
Friday’s ruling focused on former President Joseph R. Biden Jr.’s expansion of a legal mechanism for immigration called humanitarian parole, in which migrants from countries facing instability are allowed to enter the United States and quickly secure work authorization, provided they have a private sponsor to take responsibility for them.
Again — live by the EO, die by the EO, or at least get deported by the EO. Biden’s expansion of TPS to include large numbers of claimants did not come through Congress, but simply as a change in executive-branch policy. There is nothing at all permanent about such policies, which don’t even go through a rule-making process that requires action complying with the Administrative Procedure Act to reverse or significantly modify. If Donald Trump wants to set a different policy, well, that’s why we have elections — and Trump made immigration enforcement a particular focus of his campaign, including asylum and TPS policies.
Presumably, seven justices on the Supreme Court recognize that policy control comes with democratic elections as an expression of the will of the electorate. Since the apparent 7-2 majority on this order never explain themselves, we can only presume that they feel Trump is likely to prevail on that basis. We do get a big hint in that direction by the language of the stay: the court has ordered a stay to remain in effect regardless of how the First Circuit rules in due course on the appeal. If the appeal sides with the district court, it will have no effect as long as the White House seeks cert with the Supreme Court “in a timely manner.” Clearly, the seven justices — including Elena Kagan, interestingly — feel that the Trump administration is likely to prevail on the merits if and when they review the case.
Two of the justices — Ketanji Brown Jackson and Sonia Sotomayor — disagree, but Jackson’s dissent (with Sotomayor joining) seems much more oriented to a policy debate than the legal issues this case presents:
When this Court evaluates whether or not to stay a lower court’s order, the factors we apply are well established: The applicant must show a fair prospect that we will grant certiorari and reverse, that the merits favor them, that irreparable harm will befall them should we deny the stay, and, in close cases, that the equities and public interest are on their side. See Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam); Maryland v. King, 567 U. S. 1301, 1302 (2012) (ROBERTS, C. J., in chambers); see also Nken v. Holder, 556 U. S. 418, 434 (2009). In any given case, each of these considerations bears on the appropriateness of the requested intervention and is a prerequisite to obtaining relief.
The Court has plainly botched this assessment today. It requires next to nothing from the Government with respect to irreparable harm. And it undervalues the devastating consequences of allowing the Government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending. Even if the Government is likely to win on the merits, in our legal system, success takes time and the stay standards require more than anticipated victory. I would have denied the Government’s application because its harm-related showing is patently insufficient. The balance of the equities also weighs heavily in respondents’ favor. While it is apparent that the Government seeks a stay to enable it to inflict maximum predecision damage, court-ordered stays exist to minimize—not maximize—harm to litigating parties.
This is nonsense on stilts. Both parties might experience irreparable harms in this legal conflict, and the insult to presidential authority would arguably impact 77 million Americans who voted for Trump to fix the immigration mess created by Joe Biden (or whoever was running things under his name). Voters only have elections as their ability to respond to bad policy and hold presidents accountable for it. The balance of harms in this case tilts heavily to the Government by any rational measure, unless one thinks that Joe Biden’s writ is somehow entirely unchangeable through democratic processes like elections.
In fact, Justice Jackson even concedes that the government might be likely to win on the merits, but still objects to the stay. Why? Because Jackson and Sotomayor don’t like the policy outcomes — not because they would violate statutes, laws, or the Constitution, but simply because they prefer different outcomes. That might make a good argument in a legislature, but not in a judicial review. The Supreme Court has no legitimate role in imposing policy preferences outside of ensuring that the laws are enforced properly.
As for “precipitously upending the lives and livelihoods of nearly half a million noncitizens,” one has to wonder how Jackson and Sotomayor define temporary. Joe Biden may have wanted to use it as a conduit to permanent residency in the US, but that isn’t what Temporary Protected Status means or intends. It is meant to temporarily shelter people from acute circumstances of war and natural disaster, not permanent relocation. Many of these migrants have been here for years already, all the while under a status that has been both legal and temporary. These migrants have had months to prepare for an end to this status — certainly the six months since the election, or four months since the inauguration. How much time do they need to prepare? Four years?
At any rate, the process can now begin, at least until the Supreme Court inevitably grants cert and hears arguments in this case. By the time that takes place, though, the Trump administration has plenty of time to render it largely moot. And that may be what the seven justices prefer.
