The Supreme Court this morning, in a pair of 6–3 opinions written by Justice Samuel Alito, gave the Trump administration’s border policies two more big wins. Both pared back humanitarian bases for admitting people into the country. Mullin v. Doe allowed the administration to revoke Temporary Protected Status (TPS) designations granted by the Biden administration — specifically for Haitians and Syrians, but the decision’s logic, which bars judicial review of revocations, would seem to compel the same outcome for Venezuelans. Mullin v. Al Otro Lado allowed immigration officials to prevent people from reaching the border to present asylum claims, because the law allows those claims to be presented by an alien who “arrives in the United States.”
Along with Tuesday’s decision in Blanche v. Lau, which strengthened the government’s power to exclude criminal aliens prior to their convictions, this was a clean sweep for immigration hard-liners. That may take some of the sting out of the Court’s pending decision in Trump v. Barbara, which could come as soon as Monday and is expected to be a loss for Donald Trump’s executive order limiting birthright citizenship.
In the backdrop of Mullin v. Doe are the divergent attitudes of the Biden and Trump administrations toward TPS, but the actual ground of battle, as our editorials have emphasized, is the language of the TPS statute and whether courts should take the written law seriously.
The TPS statute, enacted in 1990, allows the president to designate particular countries as unsafe because of war, natural disasters, epidemics, or other temporary crises and therefore give their nationals temporary protection to stay within this country. Before the statute’s enactment, presidents would sometimes grant such protection as a discretionary matter but with no statutory authorization and, in effect, no rules. In that sense, TPS is like the 1977 tariff statute at issue in Learning Resources: It was designed to provide rules of the road for the executive to follow in responding to emergencies. Prior to 1990, the judiciary had treated these executive decisions as exercises of discretion that courts could not review.
Of course, nothing is so permanent as a temporary government program. For some countries, TPS has been continually in force now for decades, making a mockery of the “temporary” designation. Somalia has had a TPS designation for 35 years, and Nicaragua, Honduras, and El Salvador have been so designated for more than 25 years. Haiti received a TPS designation because of an earthquake 16 years ago.
The statute is written to reflect broad executive discretion. The secretary of homeland security “may” grant TPS to nationals of a particular country based on a series of statutory criteria but is under no obligation to do so. Several of the criteria explicitly reference conditions “temporarily” existing in the foreign country. By contrast, the statute requires TPS to be terminated if the secretary finds that the home country “no longer continues to meet the conditions for designation.” The law thus contemplates ongoing review — the secretary is mandated to conduct a new review at least once every 18 months — and DHS violates the law if it extends TPS when the conditions justifying it no longer exist.
That may be particularly important when a foreign tyranny is suddenly toppled and replaced by a new government, as has happened recently in both Syria and Venezuela. Syria’s designation was applied in 2012 because of the civil war that sought to topple the Assad regime, which ended with Assad’s departure in late 2024. Once TPS is revoked, the affected foreign nationals are given 60 days before they must either leave the United States or secure some other legal basis to stay. The 60-day provision was designed by Congress to accommodate the reliance interests of foreigners here temporarily, who have been given work permits but who knew from the outset that shelter on American shores was explicitly temporary.
The Biden administration tried to lock in its successor on these inherently fluid, temporary foreign policy assessments by granting TPS extensions, in some cases just days before Joe Biden left office. For example, Alejandro Mayorkas, the impeached-but-not-tried secretary of homeland security, extended TPS for Venezuela on January 17, 2025. By contrast, the Trump administration has terminated every TPS it has reviewed, 13 of them so far. Trump has been quite open about this as a deliberate policy.
Can courts review TPS designations? Congress didn’t think so. We know that because Congress said so in terms that could hardly be more explicit: “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.” The TPS litigation that has been ongoing since the outset of the second Trump term has dragged on this long because multiple lower court judges (including the Ninth Circuit) decided to judicially review what Congress said explicitly they may not judicially review. As Alito noted, judicial orders stopped Trump from ending TPS for Haiti, Syria, Venezuela, Burma, and Ethiopia and also prevented Trump from ending TPS for Haiti during his first term, in 2018.
Alito began with whether the law written by Congress means what it says, and his opinion is almost comical in attempting to take seriously the ridiculous contention that it doesn’t. “This text is clear, and its plain meaning is very broad,” he noted, and he explained why the word “determination” means decisions that the secretary is empowered and in some cases required to make.
