Today I Learned: Mullin v. Doe et al.: A Case of Willful Blindness by the Court

The U.S. Supreme Court has just ruled that the Temporary Protective Status (TPS) for both Haitians and Syrians may be arbitrarily terminated, leaving 350,000 Haitian immigrants and 6,100 Syrian immigrants without legal status in this country.

The lawsuit filed against the Department of Homeland Security by Haitian and Syrian immigrants challenged the termination of TPS on both constitutional and legal grounds. The claims are that the decisions were racially motivated and that the statutory procedures were not followed.

First, the constitutional issue. We know that our President’s views are racist. The whole country knows that. In fact, it is the reason for his appeal to certain groups. The District Court found that the record “strongly suggests that [the] decisions to terminate Haiti’s TPS was motivated, at least in part, by racial animus.” But the U.S. Supreme Court disagreed. They saw no racial motivation here. And, of course, they had to bend over backwards to find another justification for these decisions. They claimed that maybe Trump just doesn’t like TPS. It has nothing to do with race. In that case, there is no constitutional question. Justice Thomas even went so far as to say that immigrants are not entitled to equal protection so that the constitutional question is irrelevant.

But the majority opinion did not go that far. Alito, author of the opinion, acknowledged the constitutional claim but stated that it was likely to fail because there is a “race-neutral explanation” for terminating Haiti’s TPS designation. This is where the majority ignored the clearly racist statements by the President, statements that Justice Kagan in writing the dissent, called “so repellent and racially inflected that the majority declines to put them in print.”

In coming to his decision, Alito made clear his intent to define terms by their common meanings, and not by technical definitions. At least, that intent applied to the term “determination” in the statute prohibiting judicial review of TPS decisions. Remarkably, he did not apply the same reasoning to the racist statements made by the President. He maintained that none of the statements by either the President or the Secretary were “overtly racial.” If that were true, there would not have been such outcry against those remarks. The common meaning of racist was clearly represented by these remarks.

In addition, the plaintiffs claim that the Secretary failed to follow the law by not consulting with “appropriate agencies of the Government” about the current conditions in their home countries to confirm that it is safe for the immigrants to return. In fact, it is not safe. On the State Department website, both Haiti and Syria have travel advisories given as Level 4 “Do Not Travel.” In Syria, there is a documented risk of “terrorism, unrest, kidnapping, hostage taking, crime, and armed conflict,” and in Haiti, there is a risk of “crime, terrorism, kidnapping, unrest, and limited health care.” How, then, can the government consider returning immigrants who fled these countries for their own safety in the first place?

This decision puts over 350,000 immigrants at risk. Although their status was deemed temporary, they have been here for 14 to 16 years, have worked, raised families, and contributed to the economy. Since it is still unsafe for them to return to their countries of origin, I would hope that we might find a way to put them in a position to obtain a green card for the sake of their peace of mind and also of that of the those who employ them, especially those in the health care industry, which employs at least 50,000 immigrants.

At any rate, this decision is misguided, fails to follow the law, and seems to be designed solely to accommodate Trump’s prejudices. It is not worthy of the Court that issued the ruling.