Trump’s Mass Deportation Machine Won Big at the Supreme Court

The Supreme Court dealt a painful blow to immigrants on Thursday in a pair of 6–3 decisions that expanded President Donald Trump’s drive to turn away or expel as many noncitizens as possible. First, in , the conservative supermajority allowed the government to block refugees at the border, preventing them from entering the country and vindicating their right to seek asylum. Next, in , the same justices allowed Trump to cancel Temporary Protected Status designations for those fleeing Haiti and Syria, subjecting hundreds of thousands of law-abiding migrants to detention and deportation. Justice Samuel Alito authored both opinions with a tone of sneering hostility toward the noncitizens whose lives will now be upended, coupled with obsequious deference to the Trump administration.

On a pop-up bonus episode of Amicus for Slate Plus members, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed these rulings and where they fit into the Supreme Court’s broader complicity in the president’s mass deportation campaign. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: These were incredibly consequential gut punches, two more in a long sequence of brutalizing cases. We saw the rights of asylum-seekers and TPS beneficiaries just absolutely flattened in one day.

Mark Joseph Stern: I’ll start with the TPS case, Mullin v. Doe, because it illustrates the weird synergy between the conservative supermajority and the Trump administration on the question of whether this president can do whatever he wants. Mullin was a challenge to the Trump administration’s premature termination of TPS for immigrants from Haiti and Syria. Now, Congress did allow the executive branch to terminate a TPS designation. But it laid out a specific process that the Department of Homeland Security must go through so that people have notice, the decision isn’t arbitrary, and nobody gets stripped of lawful status overnight: DHS must consult certain agencies. It must undertake a holistic review of the countries in question. It must make certain findings about whether they meet TPS criteria. There must be at least 60 days’ notice.

The Trump administration didn’t do anyof this correctly. It essentially yanked TPS overnight and refused to give a legitimate justification. So TPS holders sued. The Trump administration responded by asserting that courts couldn’t hear the case at all, because the statute allows “no judicial review of any determination” about TPS termination. The plaintiffs countered that a “determination” meant only the “final decision,” not the legally required steps leading up to it. On Thursday, the Supreme Court sided with Trump. It held that the entire process is immune from judicial review. So if the executive branch does everything wrong, if it willfully skips the steps laid out by Congress, it doesn’t matter. TPS is gone and there’s nothing courts can do about it.

It’s worth saying that TPS has existed since the ’90s and does not give you a path to citizenship. This is a cabined program that simply says: We’re not yet sending you back to a country that’s objectively dangerous. As a class, TPS holders don’t have a ton of rights. But this administration went after them anyway.

Let’s talk about the other part of Thursday’s decision. The plaintiffs also claimed that the termination of TPS for Haitians was infected with unconstitutional racism. But the majority found that they are unlikely to prevail on those claims just because of words that Trump said with his mouth. Alito wasn’t brave enough to defend those words. Then we had Elena Kagan, in a blistering dissent, reading those words into the record.

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Right: Despite holding that TPS determinations are generally unreviewable, Alito acknowledged that plaintiffs could still raise constitutionalchallenges, something only Justice Clarence Thomas disagreed with. But Alito insisted that the termination of TPS for Haitians was not motivated by racial animus, because there were actually a lot of different reasons why the Trump administration might have done it. Maybe he just really dislikes the entire program and wasn’t targeting Haitians in particular.

Kagan responded by simply quoting all the horrible, racist things that Trump has said about Haitians. He claimed they were eating dogs and cats in Ohio. He said they “probably have AIDS.” He said Haiti is a “shithole country,” that Haitian immigration is “like a death wish for our country,” and that Haitians are “poisoning the blood” of our country. A reasonable person reading those statements is going to think the person who said them is racist toward Haitians. And a government action motivated by racism violates the equal protection clause. But the majority refuses to look reality in the face and comes up with these neutral excuses.

It shows the perfect circle: Not being able to see race means you can’t see or name racism. That’s Alito’s move, both in terms of voting rights and now TPS. Let’s pivot to asylum-seekers, because is another truly horrifying decision with, again, Sam Alito writing for the six. What did he hold?

Alito held that the government can physically block asylum-seekers from entering the United States, thereby preventing them from making a claim of asylum and exercising the rights that Congress established for them. The law in question allows a noncitizen who “arrives in the United States” to request asylum, and Alito insisted that someone at the border has not arrived “in” the country yet, so they can be turned away. They aren’t physically present, so they haven’t yet “arrived.” But a different provision of the law allows noncitizens to apply for asylum if they are “physically present in the United States.” Alito just collapses these two different categories, excluding everyone who “arrives” at the border even though the law covers them too.

By misreading the statute, Alito is able to gut all these protections for asylum-seekers that Congress sought to establish. When you apply for asylum, you have a right to a screening and review by an immigration judge. Many individuals awaiting asylum adjudication get work authorization. You get some stability. And here Alito decides that none of these rights are actually mandatory. They’re optional, because the federal government can just block anybody from coming over the border and, by doing so, prevent them from ever raising a claim of asylum.

It seems like the common thread in the two immigration cases is that the Trump administration gets to use these little loopholes to wipe out robust rights that Congress expressly wanted to give noncitizens. Yet only Justice Clarence Thomas was willing to say: Actually, the president has the constitutional right to exclude noncitizens, and any congressional restrictions on that are per se invalid and presumptively wrong. The other five are just saying: We can twist the statute enough to let Trump do whatever he wants. So credit to Thomas for saying it out loud?

This is a “100 million deportations” rallying cry from Thomas. But in a perverse way, I’m glad he said it, even though it’s completely nuts and not remotely supported by precedent or the Constitution. He has argued for a long time that the president has this unenumerated, inherent authority to exclude and expel any noncitizens from the country that he wants. The same goes for his claim on Thursday that “aliens have no equal protection rights against the federal government.” These sentiments feel like the true motivation that’s driving the court’s immigration decisions. There seems to be this assumption that we should keep these people out, and when the president is trying to do that, the court needs to let him. Thomas’ theory is racist and xenophobic, but at least he’s saying what he thinks out loud rather than hiding behind statutory text like the other conservatives.

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