A detailed account of oral arguments before the U.S. Supreme Court in the case challenging the termination of Temporary Protected Status for Haiti, Syria, and other designated nations.
WASHINGTON — The U.S. Supreme Court devoted a substantial portion of its oral argument session to one of the most consequential immigration cases of the term: whether federal courts have any authority to review the Secretary of Homeland Security’s decision to terminate Temporary Protected Status (TPS) for nationals of Haiti, Syria, and other countries facing prolonged crises.
The hearing pitted the U.S. government — represented by the Solicitor General — against attorneys for the TPS beneficiaries from Haiti and Syria.
Over the course of the argument, justices from across the Court’s ideological spectrum — including Justices Thomas, Sotomayor, Kagan, Jackson, Kavanaugh, Alito, Gorsuch, and Barrett — pressed both sides on a central question: when Congress wrote that “no judicial review” exists for TPS determinations, did it really mean to strip courts of all oversight, even when the Secretary may have skipped legally required steps?
What emerged was a tense, technically dense exchange in which the government’s lawyer struggled at times to explain how a statute imposing binding procedural requirements on the Secretary could, at the same time, place those requirements beyond any court’s reach.
Part One: The Government’s Argument
The Solicitor General opened with a clear and forceful position: the statute means what it says, and what it says is that no court can review TPS termination decisions.
“Mr. President, may it please the Court,” the Solicitor General began. “The respondents are seeking judicial review of the Secretary’s decisions terminating Temporary Protected Status (TPS) for Syria and Haiti. Yet Section 1254A(b)(5)(A) provides that there is no judicial review of any determination of the Secretary regarding the designation, termination, or extension of designation of a foreign state under Temporary Protected Status.”
The government’s position rested on the breadth of the statutory language. “This provision means exactly what it says,” the Solicitor General argued. “The term ‘determination’ is a common word, broadly encompassing the decisions, conclusions, or assessments of the Secretary. The terms ‘any’ and ‘concerning’ both have a very broad meaning and a broadening effect.”
According to the government, the statute therefore excludes judicial review not just of the Secretary’s final decision to designate, extend, or terminate, but of every preliminary step leading to that determination. The respondents, the Solicitor General argued, were attempting to carve out exceptions to the bar on review — exceptions that would swallow the rule entirely.
“The respondents would want exceptions to the prohibition on review, which would entirely annihilate it,” the Solicitor General said. “Because virtually any substantive challenge could be reformulated as a procedural argument, as their own arguments demonstrate.”
The government further contended that even if the respondents’ claims were not procedurally barred, they were substantively meritless. “The law does not regulate in detail the degree of consultation with other agencies,” the Solicitor General said, adding that the Secretary’s reliance on national interest considerations was not a pretext but rather a legitimate exercise of statutory discretion. “The Secretary used her discretion consistently; this is a virtue, not a vice.”
Justice Thomas Questions the Pre-Statutory Practice
Justice Clarence Thomas opened the questioning by asking about the historical context that preceded the TPS statute itself. “What was the practice before the law was adopted?”
The Solicitor General pointed to the Extended Voluntary Departure (EVD) program, an executive practice without statutory codification. “It was the EVD practice, evoked in the Hotel and Restaurant Employees Union v. Smith ruling, rendered by the DC Circuit Court of Appeals, and which Judge Silverman described as a policy of restraint, at the heart of Heckler v. Chaney.”
The Solicitor General used this history to bolster the government’s argument that judicial review of executive immigration discretion was historically rare. “Historically, this law provided little, if any, judicial review over executive discretion here,” the lawyer said, noting that President George H.W. Bush had objected to congressional encroachment on what his administration considered traditionally unreviewable executive authority.
Justice Thomas then probed the constitutional dimension of the issue. “If the president, or the executive branch, has the constitutional authority to proceed in this discretionary way, can Congress limit that?”
The Solicitor General conceded the point: “We do not contest that. Bush opposed it, but Congress can intervene, transform tolerance into status, and set the criteria. We do not contest that Congress has the authority to do so.”
Pressed by Justice Thomas for examples of when this discretionary power had been challenged, the Solicitor General offered the Deferred Enforced Departure (DED) policy as a parallel — a program “born in the 1980s and continued since then” — though acknowledged that Congress had specifically created the TPS statute to bring structure and rules to a previously unregulated area.
The Trump v. Hawaii Question
A justice — referencing the 2018 travel ban case — pressed the Solicitor General on whether the government’s argument represented an expansion of Trump v. Hawaii beyond its facts.
“Counsel, you do not rely on Trump v. Hawaii in your argument, but that case concerned the president and entry restrictions. Here, we are interested in the Secretary and aliens already present on the territory. Your argument considerably broadens Trump v. Hawaii, doesn’t it?”
The Solicitor General defended the analogy, pointing to the rationality review standard. “I refer to the paragraph where the Court explains why simple review based on rational basis applies here, rather than a stricter examination according to Arlington Heights. The Court noted that the measure was facially neutral, as it is here, that it touches the heart of executive powers, and that it raises major issues of foreign relations and national security.”
The government’s lawyer argued that the precedents the respondents sought to apply — including Kleindienst v. Mandel and Mathews v. Diaz — lacked the precise features at issue in this case. The Solicitor General concluded: “If the Court decides otherwise, we maintain that it is meritless, regardless of the standard of review.”
A Pointed Exchange on Legislative History
The most pointed exchange came when a justice — armed with the legislative record — pushed back hard on the government’s reading of the statute’s purpose.
“May I bring you back to the discussion on EVD that you had with Justice Thomas? Even though President Bush may have opposed the restrictions and the intent to limit the Secretary’s discretion, wasn’t Congress of the view that the EVD program had serious flaws? In fact, I now quote the legislative history: ‘serious flaws and an urgent need for reform.'”
When the Solicitor General began to deflect — “That may have been the view of elected officials; we know that…” — the justice cut in directly:
“I am speaking of the House report, which says that the reason TPS came into being — and that we still do not have an unregulated EVD regime — stems from the fact that Congress was concerned by, for example, I quote, ‘the conditions under which refuge can be granted, extended, or terminated do not appear in any regulation.’ It seemed that the executive was exercising its discretion in an unregulated manner, and Congress therefore adopted this law to restrain the executive. Wasn’t that the reason President Bush opposed it?”
The Solicitor General gave ground: “I do not speak for Bush; I dispute little of what you say. We think Congress entered a domain where one saw, at least, unbridled discretion, without rules, based on broad criteria.”
The justice then pressed on the practical implications. If Congress imposed clear procedural steps, were they reviewable?
“Not reviewable: any decision or determination concerning—”
“What is reviewable here?” the justice interrupted. “Is it subject to judicial review for a person to allege that the Secretary made this determination without respecting the steps provided by law?”
“Certainly not. That would be a determination relating to—”
“Then what is the point, for Congress, of adopting this law and imposing requirements on the Secretary if there were no possibility for anyone to challenge the Secretary’s compliance with these requirements?”
The Solicitor General offered an answer that several justices appeared to find unsatisfying: “Congress can presume, as this Court often does, that the executive will act within the limits set. Congress provided for continuous parliamentary oversight: there is an annual reporting obligation, and there is the 6-to-18-month mechanism.”
The Solicitor General’s broader argument was structural: judicial review, the lawyer argued, “fits poorly with this particular law, because the Secretary must come back every 18 months to reexamine the situation.”
Bowen, McNary, and the Meaning of “Determination”
Several justices pressed the government on this Court’s prior interpretations of the word “determination” in immigration statutes — particularly Bowen v. Michigan Academy of Family Physicians and McNary v. Haitian Refugee Center. These cases, the justices noted, had distinguished a “determination” from procedural challenges that preceded it.
“What do you do with the case law of this Court — I am thinking of Bowen, and other cases in which we did not adopt the idea that a ‘determination’ means what you say it means? In other words, in Bowen, we clearly said that this terminology distinguishes the determination from the prior procedural questions and from the criteria that lead to that determination.”
The Solicitor General contested this reading: “I dispute this reading of Bowen. Bowen concerned a separate law, in a separate context, and the Court was interpreting different terms. The word ‘determination’ in this law has a broad meaning, which includes the entire decision-making process.”
But a justice noted that Congress legislated against the backdrop of Bowen and, in 1996, in the IRARA legislation, “Congress retained the formulation of Bowen and McNary. It is reasonable to interpret the exclusion of the remedy here as consistent with that of Bowen and McNary.”
The State Department Consultation Problem
Perhaps the most damaging exchange for the government came over whether the Secretary actually consulted with the State Department on country conditions in Haiti and Syria.
A justice noted the limited administrative record: “Concerning the administrative record: there are two email exchanges. In the Syrian record, it says we are examining conditions on the ground for that country. In the Haitian record, I believe we consider the following four countries. But that’s all. The State Department provided no other information.”
“It is true that the record is limited,” the Solicitor General acknowledged.
The justice continued: “The question is the following: if we think the law, by its terms, requires specific consultation regarding conditions in the country — as opposed to foreign policy concerns — no information was communicated by the State Department concerning conditions in the country. They invoke foreign policy as the motive. You also argue that, regardless of whether conditions in the country were bad or not, national interest required termination. Is that correct?”
“Yes,” the Solicitor General said.
“So we cannot presume that the State Department, which does not respond to the question asked, in fact describes conditions in the country.”
“Yes,” the Solicitor General conceded, retreating to a broader argument about the nature of consultation.
Justice Kavanaugh’s Final Probe
Justice Brett Kavanaugh asked the Solicitor General to articulate, plainly, why Congress would have so broadly stripped courts of jurisdiction.
“Can you say clearly why Congress would have prohibited any judicial review, as broadly as you assert, in this case, on what precise legal basis?”
The Solicitor General’s answer was rooted in foreign policy and the political branches’ constitutional role. “The type of decision at issue here is precisely the type of decision that lies at the heart of what has traditionally been entrusted to the political branches.”
The lawyer pointed to the rationale in the Syria termination order: “The Secretary says that our foreign policy consists of sending a message of confidence to the nascent government of Syria. The president lifted sanctions, he recognized this government, and refugees are returning from around the world. If we do not terminate TPS, this will send a message of doubt about that country.”
Tribunals, the Solicitor General argued, were overstepping. “District courts question this, instead of staying in their role. It looks as if they were proclaiming themselves second-class assistant secretaries of state, saying: ‘I, I question that.'”
When asked the same question about Haiti, the Solicitor General urged the justices to consult footnote 35 of the termination decision, which addressed the issue of “chain migration” continuing from Haiti. The lawyer pointed to the Haitian diaspora — already established in neighboring Caribbean countries, the United States, and Canada — and argued that maintaining TPS would create “a self-fulfilling prophecy” of “the brain drain from Haiti.”
Justice Kavanaugh suggested Congress had tools to police executive abuse — annual reports — but acknowledged “annual reports would intervene after the fact.”
The Solicitor General used this opening to make a temporal argument. “It’s done, to be reviewed every 18 months. This structure makes judicial review unsuitable: it lasts 18 months or more. Under preliminary injunction, as in Ramos — you know, from 2018 to 2020 — even though there is supposed to be this continuous reexamination every 18 months, district courts impose an injunction and suddenly everything is prolonged.”
The lawyer drew attention to the word “temporary” in the statute. “Remember: this is a status of temporary protection. The word ‘temporary’ is used repeatedly in the law, including in its title. Yet we are facing a situation where initial designations go back to 1991 in the case of Somalia, to Hurricane Mitch in 1998 — that is, 20 to 27 years ago for Honduras and Nicaragua — and these were still in force, or still are.”
For Haiti specifically, the Solicitor General noted that “the attempt to end the program has already been blocked by tribunals twice: under the first Trump administration and under the current one, and to date.”
Justice Jackson Closes In
Justice Ketanji Brown Jackson delivered what may have been the most cutting question of the government’s argument, returning the focus to the statute’s underlying purpose.
“I do not doubt that there are foreign policy considerations, but do you contest that the principal orientation of this law is, in reality, a humanitarian concern? The initial designation under this law is supposed to consist of determining whether there is an ongoing armed conflict in the country and whether, due to such a conflict, the return of aliens from that country would impose, I quote, ‘a serious threat to their personal safety.'”
She continued: “It seems to me that this law allows the Secretary to take into account the type of elements you mentioned with Justice Kavanaugh, but against the backdrop of the very purpose of the law — namely, what are the conditions in this country and would it, or would it not, be safe to return these people there? I have difficulty following your argument that the Secretary can make this decision without, on a procedural level, taking into account country conditions, as the law requires.”
The Solicitor General defended the statutory structure but conceded that Justice Jackson had identified a tension between the statutory requirements and the bar on review. Her reply was sharp:
“This clause is not the one I have read elsewhere in the statute requiring her to examine country conditions. And you are saying that, if she does not do so, this is not reviewable. See the provisions on foreign policy. I do not understand how one can say that the Secretary is supposed to do certain things, but is not bound by them because it is not enforceable. In the end, she can do just about whatever she wants, it seems?”
“Congress assumed that risk,” the Solicitor General replied, “when it said that there was no judicial review of any decision relating to a termination.”
“Thank you, General,” the Chief Justice said.
Part Two: The Beneficiaries’ Argument
The attorney for the TPS beneficiaries from Haiti and Syria opened with a framing diametrically opposed to the government’s.
“Mr. Chief Justice, may it please the Court. Congress balanced the law on TPS. It accorded the Secretary a wide margin of appreciation to designate countries at the outset, but it framed the power to terminate TPS — once persons have begun to rely on it — by means of mandatory procedures and rules.”
The beneficiaries’ lawyer argued that Congress likewise balanced judicial review. “It did not prohibit, as in other immigration laws, the review of all policies or any law and fact. It targeted only any decision falling under subsection B — namely, the assessment of country conditions — a domain where the Secretary is supposed to be an expert, and not an isolated legal or factual question.”
The lawyer’s central thesis was simple: “The Secretary can terminate TPS, but she must scrupulously respect the rules and follow those Congress set. By contrast, today, the government treats the law as a blank check.”
The Syrian Defect
On the merits, the lawyer argued that the Syria termination was procedurally defective on its face. “One of the bases for the designation of Syria is the existence of an armed conflict. But the Secretary never consulted the State Department about the armed conflict. Even today, the State Department’s website indicates that the armed conflict in Syria remains active.”
Moreover, the lawyer noted, the Secretary terminated Syria’s “extraordinary and temporary conditions” on national interest grounds alone — even though “the text is clear: the decision to terminate must be based exclusively on conditions in the foreign state.”
The lawyer also gave human faces to the legal abstractions, naming “Dr. Sarah Doe, a pediatrician who saves children” and “Lela Doe’s daughter,” who arrived in the United States at age three and is about to finish high school. Without the preliminary court order preserving TPS, “they have no remedy if they illegally lose their work permit, much less if they risk detention or deportation.”
Pressed on the Scope of Review
A justice pressed the lawyer on what, exactly, remained subject to review under the statute’s broad bar on judicial review.
“It is admitted that it is broad, Your Honor,” the lawyer conceded. “It prohibits everything the Secretary judges in paragraph B. The word ‘determines’ returns there often, in several places, clearly. But there are other terms as well: for example, in B(3)(A), the Secretary has an obligation to consult competent agencies. This is not a decision in itself. So here, consultation can still be reviewed.”
The lawyer argued that the statute distinguishes between the substantive “determination,” which is unreviewable, and the procedural steps that lead up to it, which are reviewable. The lawyer pointed to McNary, Reno v. Catholic Social Services, and Bowen as supporting this distinction.
The Crucial Concession — and Its Limits
In a key exchange, Justice Clarens Thomas walked the lawyer through what may be the case’s central question.
“You agreed that the determination according to which conditions in the country no longer meet the criteria is not subject to review.”
“Yes — the substantive conclusion of the Secretary,” the lawyer answered.
“This is the determination, isn’t it? This is what the law says.”
“This is how we have defined the determination.”
The justice continued: “And it takes effect once published in the Federal Register, plus 60 days, under B(3)(B), is that right?”
“That is correct.”
“Okay. And this is the determination, and this is the effect of the law. But you say that a tribunal can still suspend it by injunction.”
“Well, no, no injunction here; just a deferment under Section 705 of the APA.”
The judge reviewed the lower court’s ruling. “The DC Circuit says the tribunal delayed the termination, is that right?”
“Exact, in application of Section 705 of the APA.”
“How is this not a judicial review of the Secretary’s determination?”
The lawyer acknowledged the difficulty. “I grasp this procedural point. You want to see the anterior elements, but how do you avoid judicial review if you defer the decision? I recognize that I have difficulty answering.”
Justice Jackson’s Sharp Question
Justice Jackson — who had pressed the government hard — was no easier on the beneficiaries.
“I understand all the points, but the text says that this determination takes effect, in substance, automatically. It tells us when it takes effect and how — this is what Congress told us. Decision made, boom, it’s gone. I have difficulty understanding how this can be true and, yet, that it could also be true that judicial review, which defers this decision, is not a judicial review of this determination.”
The lawyer’s response: “Yes, because the termination decision — the final administrative act — comprises much more than the determination. It comprises elements like the effective date, as well as anterior elements that feed into this determination.”
“I hear that. Okay, very well, thank you,” Justice Jackson replied.
The Equal Protection Argument
In a final phase of questioning, justices probed the lawyer’s Fifth Amendment equal protection claim — arguing that the Haiti termination was animated by racial animus.
A justice noted the technical issue: “The equal protection clause targets the states here.”
The lawyer clarified: “It is a remedy based on the equal protection guarantee of the Fifth Amendment — the equal protection component of the due process guarantee (life, liberty, and property) of the Fifth Amendment.”
Justice Sonia Sotomayor confirmed: “The Fifth Amendment prohibits the federal government from any racial discrimination, is that correct?”
“That is correct.”
The lawyer cited USDA v. Moreno, in which a federal program denying food stamps to unmarried households was struck down despite a facially plausible rationale. “This Court nonetheless said that there was something else at stake — animosity toward a particular group, a simple aversion.”
The lawyer connected this to the case at hand: “And the president’s statements, whether you consider them as intrinsically racial or as another form of classification, reflect a simple aversion toward Haitians in particular.”
The Chief Justice closed: “Thank you, Counsel.”
What’s at Stake
The case will determine the fate of TPS protections covering hundreds of thousands of Haitians, Syrians, and nationals of other designated countries. A ruling for the government would dramatically reduce judicial oversight of executive immigration decisions; a ruling for the beneficiaries would preserve at least procedural review, even as it leaves the Secretary’s substantive country-conditions judgment beyond the court’s reach.
For the Haitian community in particular — the focus of much of the questioning, including the discussion of “chain migration” and “brain drain” — the stakes are immediate. As the Solicitor General himself acknowledged, attempts to terminate Haiti TPS have been blocked twice by federal courts under both Trump administrations.
What the justices do next will determine whether such judicial intervention remains possible at all.
https://ctninfo.com/?p=42479&preview=true
https://www.linkedin.com/company/100253760/admin/dashboard/
Note: This article was originally written in English. Translations into other languages are produced with the assistance of AI. Only the English version is authoritative; CTN assumes sole responsibility for the original English text.
Source: Reconstructed transcript of U.S. Supreme Court oral argument on the consolidated TPS termination cases involving Haiti and Syria
