The Supreme Court paved the way for the Trump administration to deport more than 350,000 Haitian and Syrian nationals in the United States who were previously protected by Temporary Protected Status designations. In doing so, the court effectively blessed Trump’s bigotry towards Haitians and dealt potentially catastrophic damage to federal civil-rights laws.
The court’s ruling in Mullin v. Doe dealt with two separate issues. One was whether Congress had barred the plaintiffs from seeking judicial review of the Secretary of Homeland Security’s decision to revoke the TPS designation for both Haiti and Syria. The other was whether the Haiti TPS revocation was illegal because it was made with a racially discriminatory purpose.
Both countries at issue experienced tremendous upheaval in the 2010s. Haiti experienced a devastating earthquake in 2010 that killed as many as 160,000 people and destroyed large swaths of the country and especially the capitol, Port-au-Prince. The ensuing social and economic crisis fueled political unrest and ubiquious gang violence. Gunmen stormed the presidential compound and killed Haitian President Jovenel Moïse in 2021, and the country has yet to elect a constitutional successor.
Syria also saw massive civilian displacements during its thirteen-year civil war, which began in 2011 as a protest movement against the regime of President Bashar al-Assad. More than 650,000 people died in the ensuring conflict. Assad fled the country in 2024 as rebel forces captured Damascus. While the new government has built ties with major powers to end economic sanctions and rebuild the country, much of Syria’s economy and infrastructure remains in ruins.
Federal law allows the secretary of homeland security to grant temporary protected status—also known as TPS—to foreign nationals inside the United States when they are unable to return to their home countries due to extraordinary circumstances, like natural disasters or civil wars. While the law does not create a pathway to permanent residency or citizenship, it does generally protect TPS recipients from deportation without some other cause.
The Obama administration invoked TPS for Haitian and Syrian nationals in 2010 and 2012, respectively. Under federal law, the secretary of homeland security must conduct a review every 18 months to determine if the country in question “no longer continues to meet the conditions for designation.” The law requires the secretary to “consult with appropriate agencies of the government” before reaching that determination.
Since TPS status can hinge entirely on an executive-branch official’s determination, those protected from removal by it became a logical target for Trump officials after they retook power last year. The second Trump administration has dedicated itself to ethnically cleansing the United States, both by shutting down legal pathways for immigration and by removing as many non-white people from the country as possible through deportation.
To that end, the Trump administration has constructed a vast network of deportation warehouses to pressure people to leave by holding them in unsanitary and unsafe conditions. It has dismantled the nation’s refugee-resettlement program with the sole exception of white Afrikaners from South Africa. It has even claimed the power to abolish birthright citizenship by executive order; the Supreme Court will rule upon the legality of that step later this month.
In keeping with that goal, Trump also issued an executive order last year that instructed executive-branch officials to take a more “limited” approach to TPS designations. Then-Secretary Kristi Noem announced soon thereafter that she would be terminating the TPS designations for Haiti and Syria. A group of TPS recipients responded by suing her and the department to challenge her decision on multiple grounds. (Markwayne Mullin, who replaced Noem as secretary earlier this spring, is now the lead defendant.)
Congress, using its jurisdiction-stripping powers, had included a provision in the statute to forbid courts from exercising “judicial review of any determination of the [secretary] with respect to the designation, or termination or extension of a designation, of a foreign state.” As a result, the TPS recipients had no ability to challenge the designation itself—for example, to argue that it was not yet safe to return to their home country.
Instead, the TPS recipients argued that they weren’t challenging Noem’s determination itself. Instead, they argued that she had illegally reached that determination by improperly following the law’s consultation requirement with other federal agencies. Alito, writing for the majority on Thursday, argued that the judicial-review bar applied to the entire deliberative process. “If the final agency action is unreviewable, then so too are subsidiary determinations,” he concluded. “This important principle ensures that challengers cannot avoid a judicial-review bar by creative pleading or clever lawyering.”
In the Haiti case, the district court also found that the TPS designation was illegal on Equal Protection Clause grounds because race was a motivating factor. It applied the Supreme Court’s test from the 1977 case Arlington Heights v. Metropolitan Housing Development Corporation, which requires courts to evaluate whether race was a “motivating factor” by, among other things, looking into “evidence of intent” that can include “contemporary statements” by key officials.
It is not surprising that the district court ruled against the administration because Trump is vehemently and publicly racist towards Haitians. Accordingly, the court concluded that Trump had acted, “at least in part, with racial animus” because the president “repeatedly invoked racist tropes of national purity.” Findings like this are typically subject to clear-error review by appeals courts. In other words, they aren’t supposed to be overturned as long as they are “plausible,” Kagan noted in her dissent.
With Trump, that should be an easy threshold. “The evidence [the plaintiffs] have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print,” Kagan noted. “Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.”
She cited Alito’s assertion that “poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country’s ills.” At the same time, Kagan also quoted from Trump’s public comments about Haitians at length:
Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].” And: Haitians are also eating “other things too that they’re not supposed to be.” And: Haitians in the United States “probably have AIDS.” And: Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.” And: Haitian immigration is “like a death wish for our country.” And: Haitians, along with some others, are “poisoning the blood” of our country. And: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?” The majority briefly replies that those remarks are not “overtly racial,” but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.)
Alito, along with his five colleagues, divided up Trump’s statements into four categories. Some “express strong objections to the immigration that this country has experienced in recent decades” and to “many of the immigrants who have come here, particularly those who have come […] illegally,” which Trump “associate[s] with crime and other social ills.” Alito could have hardly sanitized them more than if he had used Clorox.
Other statements, Alito claimed, “express great displeasure with TPS” in general or “broadly denigrate the countries for which TPS designations have been granted—including Haiti—portraying them as hellish places to live.” Finally, Alito noted, some of Trump’s comments “malign Haitians who have come to the United States.” If only there were a shorter word to describe that.
After completing this act of transmutation, Alito then insisted that “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.”
This is a deeply disturbing assessment on two levels. First, it is historically and linguistically illiterate. “The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes,” Kagan continued, quoting from precedent. “It is hard to imagine the statements being made today of any White community.” A Martian who arrived on Earth yesterday might be forgiven for not hearing echoes of Nazi Germany when the president says that a minority group is “poisoning the blood” of our country. Six Supreme Court justices have no excuse.
Alito and the court’s other conservative justices are more than capable of discerning discriminatory intent from public officials’ remarks in other contexts. In 2012, he and his conservative colleagues joined an opinion by then-Justice Anthony Kennedy that inferred anti-religious bigotry from a member of the Colorado Civil Rights Commission for using the word “despicable” to describe a Christian baker’s refusal to sell wedding cakes to a same-sex couple. Trump’s language towards Haitians was considerably stronger than that. Indeed, the court’s conservatives routinely ascribe discriminatory intent in other religious-freedom cases where legitimate policy rationales are given.
Second, and perhaps more ominously, Alito’s opinion completely butchers the Arlington Heights test, which is commonly used in civil-rights cases. Under that test, the plaintiffs should prevail so long as they can prove race was a “motivating factor,” even if it wasn’t the sole or primary factor. Alito flipped the rule around by claiming that Trump’s remarks “expressed policy views that could rest on race-neutral justifications.” In short, any pretextual explanation for Trump’s comments could overcome the interpretation that they were racist.
Arlington Heights did not anticipate that a president would be as openly racist as Trump. It anticipated a more subtle search, which is why the court in 1977 urged judges to take into account the “historical background” of a policy, as well as a “specific sequence of events leading up to a challenged decision” and “departures from the normal procedural sequence.” The court’s decision came in a case involving zoning policy just over a decade after the Civil Rights Act of 1964’s passage. It envisioned applying to subtle forms of racial discrimination after the demise of overt ones.
Alito, once again, got it backward. The search for context as described by Arlington Heights was meant to identify racist rationales that might be otherwise cloaked by officials. To Alito, however, that search is actually meant to find pretexts to exonerate Trump. “Because application of that standard calls for consideration of the context in which a challenged statement was made, the immigration context is an important factor,” he wrote.
Kagan and her fellow dissenting justices thought this to be ridiculous. “No very ‘sensitive inquiry,’ of the kind Arlington Heights compels, is needed to see them for what [Trump’s statements] are; judges, as we often say, are ‘not required to exhibit a naiveté from which ordinary citizens are free,’” she explained.
This is hardly new territory for Alito: He performed the same pretzel-twisting to make it impossible to bring racial-gerrymandering claims in Louisiana v. Callais earlier this term. At the same time, rewriting Arlington Heights in this fashion is arguably worse because, unlike Callais, it applies in a much wider range of legal contexts. If the court’s reworked test applies outside of the immigration context, it could excuse a much greater range of bigotry by public officials, veiled or otherwise, than the current status quo.
Alito further excuses Trump’s remarks by claiming the plaintiffs themselves had given Trump a race-neutral reason by citing “the present administration’s general stance on immigration.” (As I’ve noted before, Alito has a hobby of sorts of making disfavored litigants act against their own interest.) He noted, puckishly, that the Trump administration had ended TPS for a wide range of countries from Asia, Africa, and South America and took this as evidence of a lack of racist intent.
“Most would regard this as a racially diverse group of countries, but [the plaintiffs] see them all as ‘non-white’ nations,” Alito claimed. “They claim that TPS has not been terminated for any predominantly white nation, and they therefore infer that the reason for the termination of the TPS designation for Haiti was having a predominantly nonwhite population.”
But, Alito noted, the reason that they haven’t done so is because no European country, except for war-torn former parts of Yugoslavia, had ever fallen under TPS and lost it. (Ukraine currently has one, he noted, but it won’t be up for review until later this year.) “The great majority of countries granted TPS have ranked among the poorest nations of the world, and no European nation falls into that category,” Alito coyly observed.
In the end, it comes as no real surprise that the Supreme Court’s conservative majority takes no issue with Trump’s description of Haiti as a “shithole country,” nor that it finds no racist motivation in describing them as eating people’s pets or poisoning the blood of the American Volk. They don’t see Trump’s remarks or actions as racist because they apparently agree with him.
