President Donald Trump has shown that with the appropriate political will, presidents can secure the border without help from Congress. Lower courts, partnered with open-borders activists, have sought to undermine this power, but the Supreme Court dealt two blows to this activism on Thursday.
The court held that Temporary Protected Status is indeed “temporary,” and that an alien is not in the United States till they are “in” the United States. These simple declarations, that words mean what they say and that statutory limits must be enforced as written, will make it easier for future presidents to preserve the border security Trump has achieved.
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In Mullin v. Al Otro Lado, a San Diego-based open-borders activist group brought a class action lawsuit against the Trump administration in 2017, after Customs and Border Protection instituted a metering system in which CBP officials stood on U.S. soil and prevented aliens from entering the San Ysidro port of entry until it had the capacity to process them properly.
This policy denied aliens traveling from Mexico the ability to cross into the country and claim asylum. Under U.S. statute, once an alien “arrives in” the U.S. and is inspected by a CBP official, if they claim asylum or voice a “fear of persecution” if returned to their home country, they are entitled to a credible fear interview and an appeal of that determination. This means they will be released into the U.S. until their appeal is finalized. By stopping them before they enter, the Trump administration denied them this pathway into the country.
Open-borders activists claimed that as soon as an alien intending to enter the U.S. encounters a U.S. official at the border, even if that alien is still in Mexico, that should qualify under the statute as “arriving in” the U.S. Writing for the 6-3 majority, Justice Samuel Alito was having none of it.
“A running back does not arrive in the end zone when he reaches the 1-yard line,” Alito wrote. “A guest does not arrive in a house when he knocks on the door. An army does not arrive in a city by encamping outside its walls.”
“A person arrives in a destination only when he enters it, and that conclusion does not change because someone or something blocks entry,” Alito continued. “A person arrives in the U.S., then, only when he enters it.”
Similarly, in Mullin v. Doe, another 6-3 majority opinion authored by Alito, found that the word “temporary” in Temporary Protected Status really does mean temporary. In Doe, five Haitian nationals who had been in the U.S. for between five and 33 years, sued to stop Homeland Security Secretary Kristi Noem’s termination of Haiti’s TPS designation, claiming violations of the Administrative Procedure Act and the 14th Amendment.
Created by Congress in 1990, TPS empowers the DHS secretary, “after consultation with appropriate agencies,” to designate a country for TPS status if the secretary determines that “extraordinary and temporary conditions” make a foreign state too dangerous for its citizens to return home. The statute requires the secretary to terminate a country’s TPS designation when the country “no longer continues to meet the conditions for designation.”
The law requires the secretary to review each TPS designation every 18 months, in consultation “with appropriate agencies of government.” If he takes no action, the temporary status renews automatically for another six months. But if the secretary determines a country no longer qualifies for TPS, he may publish a notice in the Federal Register ending the status, and this takes effect 60 days after publication.
The Haitian plaintiffs made two claims challenging Noem’s termination of Haiti’s TPS designation. First, they said Noem failed to consult the appropriate government agencies properly. Second, they claimed Noem’s statements about Haitian migrants were evidence of racial animus, violating their Fifth Amendment right to equal protection. The plaintiffs noted that Noem had called Haitians “leeches,” “entitlement junkies,” and “foreign invaders.”
After first noting that the “temporary” part of TPS had largely been lost in practice — Somalia has had TPS status since 1991, and three other nations have had it for 25 years — Alito noted that the TPS statute specifically forbids judicial review “of any determination of the [secretary] with respect to the designation, or termination or extension of a designation” of TPS status. Alito held that federal courts were therefore forbidden to review whether or not Noem properly consulted other government agencies before terminating Haiti’s TPS status.
THE THIRD WORLDIFICATION OF THE DEMOCRATIC PARTY
On the Fifth Amendment claim, Alito noted that the plaintiffs could not establish racial animus against them because the Trump administration has revoked TPS status for every country that has come up for renewal, including Afghanistan, Burma, Cameroon, Nicaragua, Honduras, Nepal, and Venezuela. “Most would regard this as a racially diverse group of countries,” Alito noted. While plaintiffs had argued that these are all “non-white” countries, Alito countered that the only European nation with TPS status was Ukraine, and that nation’s renewal had not come up yet.
For too long, lower federal courts have treated immigration statutes not as law to be enforced, but as invitations to impose open-borders policies that Congress refused to enact. Thursday’s decisions are a welcome correction. Presidents cannot secure the border if judges are free to redefine “in” to mean “outside” or “temporary” to mean “permanent.” The Supreme Court restored the ordinary meaning of those words and, with it, a principle of self-government: Immigration law is written by Congress and enforced by the president, not rewritten by district court judges at the behest of activist groups.
