The Supreme Court held on Thursday that the Trump administration may ignore procedural rules governing the “temporary protected status” (TPS) program, which allows foreign nationals from war torn or otherwise unsafe countries to temporarily remain in the United States until their home nation stabilizes.
The decision in Mullin v. Doe was handed down along party lines, with all six Republicans joining Justice Samuel Alito’s majority opinion, and all three Democrats joining Justice Elena Kagan’s dissent.
Federal law permits the Department of Homeland Security to offer temporary protected status to noncitizens who are present in the United States when an “armed conflict,” natural disaster, or some other catastrophe makes their home country unsafe. Temporary protected status is supposed to be, well, temporary. So DHS must periodically review the list of countries whose nationals may seek protected status, and remove countries from the list once the crisis in those nations abates. People with TPS may also work in the United States while they are lawfully present.
The Trump administration, however, is hostile to this program and has thus far removed TPS designations for all 13 countries that have come up for review. President Donald Trump also issued an executive order calling on his cabinet to ensure that TPS designations “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.”
Mullin v. Doe concerned the Trump administration’s decision to strip TPS from Syrians and Haitians living in the United States. Syrians previously had TPS status because of a civil war that ousted its president in 2024. Haitians had TPS status because their nation lacks a stable government following a series of calamities including a major earthquake and the assassination of Haiti’s president.
Now that the Court has permitted Trump’s DHS to terminate these TPS designations without first complying with procedural rules written into federal law, large numbers of people who previously were allowed to live in relative safety within the United States are likely to be deported. The decision could impact as many as 300,000 Haitians alone.
The decision is hard to square the Court’s precedents, but it is also unsurprising. The Court’s Republican majority often applies special procedural rules to Trump. Among other things, the Republican justices have massively expanded the Court’s “shadow docket,” a mix of cases that the Court often decides on an expedited basis, to provide Trump with a fast-track way to halt lower court decisions that he does not like.
In fairness, no matter what the Court decided in Mullin v. Doe, the decision was unlikely to provide lasting relief to anyone, because the case primarily concerned whether DHS complied with a procedural rule. Had the decision gone the other way, Trump’s DHS could have still terminated Syrians and Haitians’ temporary protected status after it followed the proper procedure.
But a ruling in these noncitizens’ favor might have bought them several more months of safety, while DHS ran through the proper process.
What was the specific legal issue in Mullin v. Doe?
Everyone involved in this case agrees that DHS could eventually end TPS. A federal law provides that “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.” So that law is pretty clearly bad news for these plaintiffs.
That said, the plaintiffs’ lawyers made a strong argument that the word “determination” as used in this law, applies only to the DHS secretary’s final conclusion that a particular country is safe enough to justify terminating TPS. Federal law also contains several procedural requirements that DHS must follow before it makes that ultimate determination, and multiple lower courts had held that they could review the Trump administration’s failure to comply with those procedural rules.
The plaintiffs in Mullin v. Doe specifically argued that DHS failed to adequately consult with the State Department before it issued its decision terminating temporary protected status for Syrians and Haitians.
As Kagan notes in her dissent, the Court held just last year that the word “determination” refers to the “settling and ending of a controversy,” rather than the procedural steps that go into making that determination. She also points to McNary v. Haitian Refugee Center (1991), which held that the word “determination” refers to a “single act” that does not include the “procedure employed in making decisions.”
So, while the relief sought by the plaintiffs was narrow — again, they only sought an order requiring Trump’s DHS to comply with procedural rules before taking away their protected status — decisions like McNary established that these plaintiffs were entitled to that relief.
Nevertheless, Alito claims that these cases are not relevant, arguing that DHS’s failure to follow procedure is such an integral part of its ultimate decision to terminate temporary protected status that courts may not review DHS’s procedural errors.
There was also a racial question regarding the treatment of Haitians
One other issue in this case is whether the decision to terminate temporary protected status for Haitians was unconstitutional because it was motivated by racism. In her dissent, Kagan quotes a long list of statements by Trump that are “shot through with racial stereotypes and tropes,” including Trump’s false claim that Haitian immigrants are eating people’s dogs, and a claim that they are “poisoning the blood” of the United States.
There’s no question that Donald Trump is a racist. But Alito actually has a fairly good response to Kagan’s argument that the decision to terminate TPS for Haitians happened because of Trump’s racism. As Alito writes, Trump’s DHS “terminated the TPS designations for every country that came up for review.” And these countries include nations in “East Asia (Nepal and Burma), Central Asia (Afghanistan), the Middle East (Syria and Yemen), Africa (Somalia, Ethiopia, South Sudan, and Cameroon), Central America (Nicaragua and Honduras), South America (Venezuela), and the Caribbean (Haiti).”
So, despite Trump’s offensive statements, it does appear that his administration did not discriminate specifically against Haitians, or against Black people more broadly. Trump’s policy appears to be that all people who previously enjoyed TPS will be treated with equal cruelty.
