Sam Alito Wrote One of the Cruelest Opinions of in Recent Memory

On Thursday, the Supreme Court blessed the Trump administration’s efforts to kick hundreds of thousands of Haitians and Syrians out of the United States. This was one of three unspeakably wrong opinions released on the same day, all by a 6–3 ideological divide, and all written by Justice Samuel Alito. Alito’s opinion pulls off a nearly unfathomable one-two punch of white racial apology: simultaneously backing all of the Trump administration’s claims of crime and filth across Black and brown countries, while also ruling that the administration’s decisions were not motivated by race. The opinion allows the White House to immediately begin shipping out people who have lived in the U.S. for decades under the temporary protected status program. This forthcoming removal—which will apply not just to Syria and Haiti but to 11 other countries—will now proceed without any judicial review of the proper process that Congress required when it established this program, and without any regard for the constitutional guarantee of equal protection.

Fritz Miot and Laila Doe are two foreign nationals who have lived in the United States for decades thanks to the TPS program. Miot is from Haiti and lives in California, where he studies Alzheimer’s at a research lab. Laila fled Syria in 2013 after her neighborhood was bombed in the Syrian civil war; she now lives in Illinois, “where she works as a behavioral technician for individuals with disabilities and cares for her elderly mother, a U.S. citizen.” Both Haiti and Syria have been designated as TPS countries since the 2010s, as a consequence of the devastating 2010 Haiti earthquake, the Syrian civil war that began in 2011, and the difficult conditions in both countries that have continued ever since.

But the Trump administration wants to kick Laila and Miot out of the country. Candidate Trump repeatedly made virulently racist remarks about the TPS program and the people that benefit from it. Most notably, Trump spat at a debate that Haitian TPS recipients in Ohio were eating the cats and dogs of their neighbors. Trump and his administration described Haiti as a “shithole country,” whose people were “poisoning the blood” of America, and promised to use TPS revocation (as it had in his first term) as one of his second presidencies’ many tools toward making America whiter. True to its threats, the second Trump administration began ending the TPS program one country at a time as each one came up for renewal under the statute. For 13 countries in a row, the Department of Homeland Security decided what no past administration had before, that the dangerous conditions that had justified an initial determination for TPS, and years of renewed investigations into those conditions, had somehow ended. After the government revoked TPS status for Syria and Haiti, Laila, Miot, and other plaintiffs sued.

This is where TPS’ history is important. Congress created the TPS program in the Immigration Act of 1990, with an eye toward allowing foreign nationals to lawfully come to the United States for as long as their home countries are suffering from dangerous conditions. The danger can come from an ongoing armed conflict like Laila experienced in Syria, or environmental disaster like Miot lived through in Haiti, or any other “extraordinary and temporary conditions” that would make it unsafe for those allowed in the U.S. to return. And despite the temporary label in the name, the statute is equally clear that the protected status can be renewed repeatedly.

Plaintiffs quickly racked up victories against the TPS revocations in the lower courts. The courts explained how the TPS statutes sets up a detailed program under which the Department of Homeland Security must review on the ground conditions for TPS countries every 18-months, and must follow specific procedures as it decides whether to extend or revoke the status. Crucially, there is no limit to how long a program could be extended, so long as the government continues to determine there exists a danger in each specific country. The government is restricted from revoking the status otherwise.

On statutory grounds, the lower courts had ruled that the Trump Administration had failed to follow the proper procedures when it revoked Haiti and Syria’s designations, which required consultation across federal agencies before making such a decision. Instead of consulting, DHS sent a single terse email to the State Department, which did not even cover the topic of a country’s safety and instead asked about any general “foreign policy concerns.” And based on internal emails that were revealed just days before the opinion dropped, DHS went on with the revocation even before they received a response from the State Department. This was the sloppiest of procedures possible, something that in the past even the Roberts Court has refused to oblige. In the Haiti case, plaintiffs succeeded in getting two lower-court rulings that the agency’s actions are unconstitutional under the 14th Amendment’s Equal Protection clause, because the actions were motivated by racial animus.

The lower court’s rulings striking down the Trump administration’s TPS actions, though, stood no chance against this Supreme Court. Typically, a challenge to a federal agency’s action proceeds on somewhat technical grounds, where a judge assesses whether the government used “arbitrary or capricious” reasons for making its decisions, and if the agency followed the right procedures. Under this typical approach, a more ordinary court might have considered whether, on balance, the Trump administration weighed the pros and cons of a TPS revocation in Haiti and Syria’s cases. But Justice Alito blew right past what a typical conservative would have done. The majority held that a single provision in the TPS statute contains a complete bar to all lawsuits alleging a violation of the law.

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To reach this result, the court adopted an abusively broad reading of a term in the law: “determination.” The statute says that there is no judicial review, but only with respect to the DHS Secretary’s determination of whether a country deserves a TPS designation or not. Justice Alito took this provision and blew it up like a balloon, arguing that the provision doesn’t just prevent courts from reviewing whether the agency was correct in finding that a country was or was not dangerous, it also prevented a court from reviewing every single procedural step that happened before this final determination. Pause on this for a second. This means that all the procedures Congress laid out for TPS designation can be disregarded, and a court can do nothing to solve them. And there are a lot of procedures. The statute mandates that the DHS consult with the State Department, explain its own reasoning for why there no longer remains a danger, and give TPS recipients at least 60 days notice for any decision. Under the majority’s reading, all of these steps are folded into the concept of what makes a “determination,” and courts therefore  “are barred from reviewing” all “non-constitutional claims” under TPS.

As Justice Elena Kagan explained in her dissent, this is an extremely unnatural reading of the statute, but would have unending consequences. The TPS law says that designations need to last between 6 and 18 months. But what if DHS decides to designate a country as “safe” (and therefore its nationals deportable) for the next 50 years? The majority itself raises a 50-year policy as a possibility, and does not bother to say that any court could do anything about it, even though it would obviously violate the statute. Quite the opposite, the best the majority could come up with is that “Congress would have ample means to stop that abuse, including, for example through the annual appropriates process.” (The maneuver of pointing to Congress solved problems that the court created is a classic move that the court turns to when it’s issuing a devastating decision, as it hopes to shift the forthcoming blame to another branch.)

If the court’s statutory ruling wasn’t bad enough, the court then proceeds to make a mockery of racial animus in the constitutional part of this decision. Recall that the Haitian plaintiffs successfully convinced the lower court that the TPS revocation was based on unconstitutional racial bias. And proving that was plain as day, given the dozens upon dozens of racist statements from this president: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? Trump has said, “Why cannot we have some people from Norway [and] Sweden.” Trump also described immigrants as “poisoning the blood” of our country. As Kagan sardonically noted: “The majority briefly replies that those remarks are not ‘overtly racist,’ … but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primativeness—are shot through with racial stereotypes and tropes.” Under the longstanding test from 1977’s Arlington Heights case, courts are required to look for explicit and implicit evidence of racial bias in government decisionmaking, which includes statements made by elected officials.

But no, Justice Alito said. There’s a perfectly non-racial explanation for all of the cat and dog whistling. “None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” In other words, the Trump administration hates all types of immigration, and wanted to roll back the TPS system as a whole, so therefore it couldn’t have acted racially in its decision. On top of that, the court said that it’s pretty much just a coincidence that the majority of TPS countries are predominantly non-white. That’s not the Trump administration’s fault, it’s only because “[t]he great majority of countries granted TPS have ranked among the poorest nations of the world, and no European nation falls into that category.” The stability (and therefore superiority) of European nations is evidence to be used against any argument that the Trump administration was unfairly motivated by illegal racial animus.

The suffering from this faulty reasoning has already begun, as Venezuela, another TPS country, reels from a devastating earthquake the same day as the court’s opinion. This is precisely the kind of situation that in the past would have permitted Venezuelans who may have ties to the United States to come to this country, like how many Haitians came after Haiti’s 2010 earthquake. But because of the Supreme Court’s racially blind reasoning, that is no longer the case.

Justice Kagan again points out how Alito’s posture is nowhere near the correct legal standard for racial discrimination. The law doesn’t require plaintiffs to show that 100 percent of a government’s decisionmaking was motivated by race, only that race was a factor, and here that evidence was clear as day. The court’s blessing of discrimination against Haitians comes in the same week as a Democratic incumbent’s campaign in New York came under fire after treating “Haitian” as a slur and using it against his Dominican challenger. The Trump administration’s statements were so “repellent and racially inflected” that neither the DOJ nor the majority would even repeat them, Kagan noted. But the court was perfectly willing to reach the mind boggling conclusion that the Trump administration was not “overtly racial.”

At the stage of the case they were in, plaintiffs like Miot and Laila were not even asking to win the entire case. Instead, all they were asking the court to do is to let them stay in the country and not be immediately deported while they had a chance to litigate their claims. The Supreme Court couldn’t even give them that courtesy. And the DHS immediately took to gloating, as the General Counsel James Percival said that “we didn’t just win these two TPS cases. Rather, we won all TPS cases for all time.” The Trump administration will now resume its breakneck revocations and deportations of Black and brown people who came here after tragedy struck their countries and now call this place home. The only thing worse than the reasoning of the conservative supermajority is the devastating and life-threatening consequences this decision will have for years to come.

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