We’ve seen this movie several times during President Donald Trump’s second term: The Supreme Court rights wrongs committed against the Trump administration by lower federal courts, only to have new litigants file the same complaint in another federal venue where Democrat-appointed judges once again wrongs the Trump administration. It’s getting old, and frankly, the Supreme Court at some point (we’re looking at you, Chief Justice John Roberts) needs to start disciplining these rogue activists posing as judges.
That said, Supreme Court opened its new term Monday by erasing the Ninth Circuit’s ruling in the Venezuelan TPS case. It granted the government’s petition in Mullin v. National TPS Alliance, vacated the judgment below, and sent the case back to be reconsidered under Mullin v. Doe, decided in June.
No new opinion, no merits ruling. A GVR — grant, vacate, remand — which is the Court’s way of telling an appellate panel that it got the law wrong and should try again with the law in hand.
The law in question is not ambiguous, as SCOTUS ruled: “A provision of the TPS statute, 8 U. S. C. §1254a(b)(5)(A), provides: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” This text is clear, and its plain meaning is very broad.” [my emphasis] That is about as close as the justices come to saying this should never have reached us — or any federal court.
Now consider what happened anyway. U.S. Distirct Judge Edward Chen — an Obama appointee in San Francisco who came to the bench from the ACLU — issued a series of rulings holding that Secretary Noem acted unlawfully in ending Venezuela’s designation, culminating in summary judgment for the plaintiffs. The Ninth Circuit twice declined to stay him and then affirmed. One district judge, applying a statute that forecloses judicial review, set immigration policy for the single largest TPS population in the country.
This is the pattern of the last two years, and it is a strategy, not a coincidence. Find the right district. Find the right judge. Obtain a nationwide ruling. Then let the appellate process grind for eighteen months while the policy stays frozen, because delay is the actual remedy sought. By the time the Supreme Court corrects it, the clock has done its work.
The one thing that broke the pattern here was the Court’s earlier stay, which let the administration proceed with winding down the protections while the litigation continued. That’s why Monday’s order changes nothing for anyone’s status. The policy was already being implemented. All the Court did was clear the last appellate debris.
And notice the word everyone involved in this litigation has been pretending not to see. Temporary. TPS exists so the Secretary can grant breathing room when a country is in crisis, and withdraw it when the executive judges the crisis has passed. The statute gives that judgment to one official and explicitly removes it from the courts. Treating a temporary designation as permanent — enforceable by judges against the official Congress named — rewrites the program into something it was never enacted to be.
The justices have now said it twice, in plain terms, and declined to take up the remaining challenges from other countries. The question is settled. Expect to see those eight words quoted back at a lot of district judges this term.
