TPS Fight 2.0

The legal battle to stop Trump from delegalizing 1.3 million people goes on

When the Supreme Court took courts out of the business of deciding if the Secretary of Homeland Security violated federal law by ending Temporary Protected Status, it seemed like the end was near for the legal permission that DHS had issued roughly 1.3 million people. Now a new legal strategy has delayed what once seemed inevitable. In a series of lawsuits, lawyers for TPS recipients from several countries argue that the secretary of Homeland Security didn’t have the power to terminate TPS. Instead, they say in court filings, Congress gave that responsibility to the Attorney General.

Created by Congress in 1990, TPS is designed to allow people from extraordinarily dangerous countries to live and work in the United States. Every presidential administration over the last thirty-six years has granted or renewed TPS, including Donald Trump during his first term. Since returning to the White House, DHS has announced plans to end TPS for thirteen countries. In June, the Supreme Court allowed DHS to move forward with terminating TPS for Syrians and Haitians. Despite the obvious security risks present in those countries, the court’s rightwing majority announced in Mullin v. Doe that Congress did not leave any room for courts to review the administration’s decision to terminate TPS. Though that case involved Syrians and Haitians only, the court’s reasoning applies to any decision to end TPS putting everyone who currently has TPS on notice.

Within weeks, advocates adopted a new and creative tactic to stop Trump’s team from ending TPS. Instead of renewing attacks on the process by which DHS is trying to strip people of their legal permission to live and work in the United States, advocates are now arguing that Congress gave this power to the Attorney General rather than the secretary of Homeland Security. Through motions filed in several ongoing cases, advocates argue that the 1990 law through which Congress created TPS tasked the Attorney General, as head of the Justice Department, with responsibility for designating countries for TPS and determining when to end it. Indeed, the law clearly states that “the Attorney General…may grant the alien temporary protected status” if other conditions are met. At the time, the Immigration and Naturalization Service – the country’s immigration law enforcement unit – and the immigration court system were housed within the Justice Department.

That all changed in 2002 when Congress created the Department of Homeland Security. The Homeland Security Act of 2002 transferred many immigration-related responsibilities from the Justice Department to DHS. Attorneys for TPS recipients now argue that the 2002 law did not transfer responsibility over TPS. They point to a section of the Immigration and Nationality Act – the federal law that governs immigration – that explicitly states that “laws relating to the immigration and naturalization of [migrants]” are transferred to the secretary of Homeland Security “except insofar as…such laws relate to the powers, functions, and duties conferred upon the President, Attorney General,” or a small number of other officials. “The power to terminate a TPS designation falls squarely within the ‘except’ clause,” attorneys for Burmese TPS recipients argue. Attorneys in other legal challenges to the administration’s attempts to end TPS have made similar claims in recent weeks, according to Bloomberg reporter Andrew Kreighbaum.

Even though these cases are ongoing, federal judges are likely to take these claims seriously. The rules that govern how federal courts operate in federal civil lawsuits instruct judges to “freely give leave” to amend complaints. Even though the rules leave final discretion with judges overseeing these cases, I expect most to allow lawyers to add this new legal argument. Judges don’t like to do pointless work. If the plaintiffs are correct, then any effort by former Secretary of Homeland Security Kristi Noem to strip citizens of Burma, or any other country, of TPS are necessarily invalid. And any effort by the administration to strip people of their legal permission to live and work in the United States based off an announcement made by someone without the authority to end TPS would plainly be illegal. From the perspective of judges overseeing these cases, there is little point in dismissing a legal challenge because Mullin constrained their role in reviewing termination decisions only to later conclude that the termination was illegal in the first place.

Photo by Aidan Bartos on Unsplash

There is reason to think that the lawyers may be onto something. DHS was created in the political frenzy that erupted after the attacks of September 11, 2001. Creating a gargantuan new department by carving pieces out of work already being done in other parts of the Executive Branch was enormously complicated. It was made more difficult by the quick pace that the administration of President George W. Bush chose. Bush’s team wanted Congress to move decisively and quickly. In the process, they took convoluted immigration laws enacted over decades and made them more labyrinthine. Today, immigration lawyers are used to reading references to the Attorney General in immigration law and mentally replacing those words with secretary of Homeland Security. That’s a convenient rule of thumb that’s fertile ground for errors.

Lawyers for TPS recipients may have found an important example. To this day, the law granting TPS decision-making power to the Attorney General, enacted in 1990, hasn’t changed. It references the Attorney General repeatedly without once mentioning the secretary of Homeland Security, a position that wouldn’t exist for another twelve years.

On top of that, the exception that TPS lawyers have flagged has been part of immigration law since at least 1952. As part of a comprehensive restructuring of immigration law that led to creation of the INA, Congress charged the Attorney General with “administration and enforcement” of federal immigration laws “except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State,” and other officials. Fifty years later, when Congress created DHS and tasked it with overseeing immigration law, it added the Attorney General to the list of officers whose role was unaffected. But in true congressional fashion, the Homeland Security Act isn’t easy to make sense of. The law’s text merely requires “inserting ‘Attorney General,’ after ‘President’” in subsection (a) of 8 U.S.C. § 1103, the section of federal law that had given administration and enforcement responsibilities to the Attorney General since 1952.

Here things get even worse. The Homeland Security Act didn’t hand power over administration and enforcement of the INA to the head of the newly created department. Everyone understood that it meant to, but the text of the new law didn’t say this. In effect, the 2002 law created an exemption for the Attorney General without altering the rule, meaning that the Attorney General continued having responsibility over administration and enforcement of immigration laws, as it had since 1952, while also being granted an exception.

This was an obvious error that Congress would fix the following year. A law titled – mundanely enough – the Homeland Security Act of 2002 Amendments, transferred administration and enforcement responsibilities to the secretary of Homeland Security. Except, of course, if those responsibilities were previously held by the president or Attorney General.

This is a statutory nightmare created by the mishmash nature of hurried congressional processes fueled by periodic episodes of anti-migrant political fervor. It’s exactly the kind of wild history that won’t surprise immigration lawyers used to illogical and inefficient requirements and procedures. And it may just be the legs that lawyers for TPS recipients are hoping for as they try to keep challenging the Trump administration’s attempts to delegalize more than 1 million people.

If they are correct, this would mean that Noem didn’t have the legal authority to terminate TPS. Neither would her successor, current secretary of Homeland Security Markwayne Mullin. It would mean that only the Attorney General could end TPS. Todd Blanche, who is currently serving as Acting Attorney General while his confirmation sits in the Senate, would certainly be willing to follow Noem’s lead, but he would have to begin the termination process from scratch, buying time for people who are living and working in communities around the country.

A federal judge in Illinois heard arguments about these issues in the Burmese TPS case, Doe v. Noem, on Tuesday. Lawyers for the Burmese citizens have asked the judge to postpone termination of their TPS, currently set for August 7. A decision is likely on or before then.

This article has been updated to note that Markwayne Mullin succeeded, rather than preceded, Kristi Noem as secretary of Homeland Security.