Justices Sonia Sotomayor and Ketanji Brown Jackson lead an intense round of questioning toward Solicitor General D. John Sauer over President Donald Trump’s remarks about Haiti, during oral arguments Wednesday in a case over the president’s bid to end Temporary Protected Status for the country.
The Supreme Court heard arguments in the consolidated case Mullin v. Doe and Trump v. Moit, where the justices were asked to determine whether federal law bars review of Trump’s decision to rescind TPS for people from Haiti and Syria. In the Haiti case, a lower court judge struck the administration’s revocation of TPS for the country by alleging that racial animus displayed by then-Homeland Security Secretary Kristi Noem and Trump against Haiti rendered the decision unlawfully pretextual. Justices Sotomayor and Jackson grilled Sauer early in the arguments on those comments.
Justices Sotomayor & Jackson ask about discrimination based on race during oral argument on termination of Temporary Protected Status (TPS) for Haitian and Syrian nationals. pic.twitter.com/ba3cgi9a5T
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“We have a president saying, at one point, that Haiti is a ‘filthy, dirty and disgusting s***hole country,’” Sotomayor said. “I’m quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, where he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America.
“I don’t see how that one statement is not a prime example of the Arlington example at work and showing that a discriminatory purpose may have played a part in this decision,” Sotomayor said, invoking the high court’s standard for racial animus, which needs racism to be a motivating factor behind an action in order for it to be unlawful, set in a 1977 ruling Arlington Heights v. Metropolitan Housing.
Sauer responded that the statements did not include race. Sotomayor pushed back by claiming that Trump’s comparison of Haiti unfavorably to white-majority countries, such as Sweden, gets close to the Arlington standard for showing racial animus.
Jackson then pressed Sauer on Trump’s comments on illegal immigrants “poisoning the blood” of the country and their “bad genes,” asking how that is not evidence of unlawful racial animus against Haitians in the U.S. under TPS.
“The position of the United States is that we have to have an actual racial epithet, that we aren’t allowed to look at all the context to include the president’s insistence that immigrants from certain countries, largely if not almost exclusively countries with black African immigrants, are not allowed and calling these sorts of names and the types of things he said about Haiti,” Jackson said.
“At the same time that it is the policy of the United States to encourage and welcome immigrants from places like Norway and Denmark and white South Africans,” Jackson said. “Your view is that it’s not appropriate for the court to take into account that kind of evidence or the context in which all of this is happening?”
Jackson also asked about Trump’s comments alleging Haitian migrants were eating pets, along with other names he has called them. Sauer again denied that the administration’s actions to end TPS for Haiti were fueled by racial animus.
SUPREME COURT APPEARS POISED TO ALLOW TRUMP TO END TPS FOR HAITI AND SYRIA
While Sotomayor and Jackson appeared deeply skeptical of the administration’s arguments, most of the justices seemed ready to allow the president to end TPS for Haiti and Syria, with at most a limited review of the process of axing TPS.
The Supreme Court is expected to issue a ruling in the TPS cases over the coming weeks, as the high court finishes its term issuing opinions in the remaining outstanding cases through the end of June.