The Trump administration faced another loss this week in its bid to end temporary protected status for people from various countries, despite the Supreme Court allowing the Trump administration to rescind the status twice. The lower-court losses are putting pressure on the justices to hear a TPS case as petitions to the high court pile up.
The latest adverse ruling for the Trump administration came Wednesday when the full U.S. Court of Appeals for the 9th Circuit declined to rehear a decision from a three-judge panel finding the administration’s revocation of TPS for Venezuela was unlawful. The ruling included a sharp dissent from U.S. Circuit Judge Patrick Bumatay, an appointee of President Donald Trump, in which he claimed the panel had “made itself the Platonic Guardian of our immigration laws rather than neutral interpreters of the law,” and ignored the Supreme Court’s previous orders saying the federal government is entitled to rescind the temporary deportation protections for Venezuelans.
“The panel has ignored strong hints from the Supreme Court that we’ve gotten this wrong,” Bumatay said, in a dissent joined by eight other circuit judges on the 9th Circuit. “Twice now, the Supreme Court has intervened and effectively reversed the Ninth Circuit in this very case by granting stays that this court had denied.
“The panel should have seen the writing on the wall. Instead, it turned a blind eye.”
The ruling came in a case in which the Supreme Court has twice halted a lower court’s attempt to block the Trump administration from ending TPS for Venezuela. However, neither time did the justices elaborate on their rationale for allowing TPS to be revoked in the interim. The lack of explanation has left the door open for lower courts to continue blocking the termination of TPS for other countries without technically running afoul of any specific guidance from the high court.
In a concurring opinion agreeing to allow the block of the TPS termination to stand, U.S. Circuit Judge Kim McLane Wardlaw, an appointee of former President Bill Clinton, noted that the issue appears poised to be argued before the Supreme Court in the near future.
“The exceptionally important issues in this case will likely be litigated at the Supreme Court in the coming months,” she wrote.
The Justice Department can appeal the 9th Circuit’s ruling to the Supreme Court on its merits docket, adding to the pair of petitions to let Trump end TPS for Haiti and Syria that are already on the high court’s emergency docket.
The Trump administration filed its second emergency petition to the Supreme Court on Wednesday, asking the justices to consider elevating the case about the Department of Homeland Security’s decision to end TPS for Haiti to its merits docket.
“Unless the Court resolves the merits of these challenges—issues that have now been ventilated in courts nationwide—this unsustainable cycle will repeat again and again, spawning more competing rulings and competing views of what to make of this Court’s interim orders,” Solicitor General D. John Sauer said in his petition.
The challenges to the Trump administration’s revocations of TPS for different countries have been met with lawsuits by activists at every turn. Federal district and appeals courts have offered sometimes conflicting rulings on the matter.
Although the federal law underpinning TPS specifically notes that the homeland security secretary’s decision on whether to revoke or extend TPS is unreviewable by courts, several federal judges have found a way to get around that statute by finding problems with the process the homeland security secretary has followed to arrive at the TPS decisions.
DOJ ASKS SUPREME COURT TO ALLOW END TO TPS FOR HAITI AND END ‘UNSUSTAINABLE CYCLE’ OF COURT RULINGS
The Supreme Court taking up any of the TPS cases to its full merits docket would likely provide a firm end to the legal war over the issue and would mark the latest instance of the justices taking on one of the Trump administration’s heated battles with the lower courts.
The justices have already ruled on Trump’s tariffs and universal injunctions, and are slated to issue rulings on his ability to fire officials within the executive branch and on birthright citizenship in the coming months.