On October 3, 2018, Judge Edward M. Chen of the U.S. District Court for the Northern District of California issued an order "enjoin[ing] and restrain[ing]" the Department of Homeland Security (DHS) from terminating Temporary Protected Status (TPS) for Sudan, Haiti, El Salvador, and Nicaragua. While there are many issues with that decision, two key ones stick out.
By way of background, there are a number of facts that a party must establish to be granted injunctive relief. As Judge Chen explained:
A party seeking a preliminary injunction must meet one of two variants of the same standard. Under the original Winter standard, a party must show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." ... Under the "sliding scale" variant of the Winter standard, "if a plaintiff can only show that there are 'serious questions going to the merits' — a lesser showing than likelihood of success on the merits — then a preliminary injunction may still issue if the 'balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied."
In balancing the hardship to the parties, the court gives short shrift (based upon the judge's prior findings with respect to his authority to review the TPS determinations for these countries) to the government's argument that both it and the public generally "share an interest in ensuring that the process established by Congress — under which the Secretary of Homeland Security is vested with unreviewable discretion to carefully weigh the statutory factors governing TPS designations — is followed as Congress intended." Similarly (and on similar grounds), he dismisses the government's argument that "the injunctive relief sought by Plaintiffs would frustrate and displace the DHS Secretary's substantive judgment as to how to implement the TPS statute."
He goes on to state:
Furthermore, the government's argument would apply to any public injunction enjoining the implementation or execution of any legislation or agency/executive policy. The risk of interference with governmental actions inheres in any public injunction, but that does not categorically bar such injunctions. While courts must exercise particular caution in issuing injunctions on matters that concern immigration given Congress and the President's extensive authority in this arena, it is beyond peradventure that governmental decisions, even those that concern on immigration, are not immune from judicial review.
Respectfully, however, the TPS designation and termination regime, in which the secretary is granted significant discretion, is not just "any legislation or agency/executive policy". TPS is an extraordinary grant of authority by Congress to the secretary to bypass many of the carefully considered grounds of removability set forth in the Immigration and Nationality Act (INA), in order to protect the nationals of a designated foreign state who are in dire, temporary need.
In a September 5, 2018, opinion piece in the Wall Street Journal, Sen. Ben Sasse (R-Neb.) stated:
It's predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates.
In the U.S. system, the legislative branch is supposed to be the center of politics. Why isn't it? For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch.
The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don't do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that's why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system. [Emphasis added.]
Section 244 of the Immigration and Nationality Act (INA), which implements TPS, is a prime example of the delegation of legislative authority to the executive branch about which Sen. Sasse refers. As my colleague Mark Krikorian explained in 2016:
Congress in 1990 created [TPS] in an attempt to hem in unilateral executive actions on immigration. The law created a framework for presidents to let illegal aliens from a country stay here for a limited period of time if there was a natural disaster or civil violence back home that made the country "unable, temporarily, to adequately handle the return of its nationals." The point was to prevent presidential freelancing.
It not only allows nationals of designated foreign states to remain in the United States (even if they otherwise lack status), it also enables them to receive employment authorization. To temper this significant delegation of authority, Congress imposes strict reporting requirements on the executive branch and even limits its own authority to consider legislation adjusting the status of any alien who receives TPS. Most significantly, it restricts "judicial review of any determination ... with respect to the designation, or termination or extension of a designation, of a foreign state" thereunder.
Further, as a practical matter, limiting the authority of the secretary to terminate a TPS designation is a significant factor that will make it less likely that the secretary will designate a foreign state for protection under TPS in the future. The "ratchet effect" that such limitations would create would inhibit initial designations to begin with.
Yes, Judge Chen, the government and public have an interest in seeing that TPS is implemented as Congress intended.
The court also found that the plaintiffs had "demonstrated the likelihood of success on the merits for their" Administrative Procedures Act (APA) claim. As the court notes: "The APA constrains an agency's ability to change its practices or policies without acknowledging the change or providing an explanation."
Specifically, the court found that the secretary had changed the policy for extending or terminating TPS by "eliminating consideration of intervening conditions not directly related to the originating condition," i.e., the reason a foreign state was designated for TPS to begin with.
For example, as I explained in an October 2017 post:
El Salvador's initial designation ... was based on a series of earthquakes in that country in early 2001. Among the reasons for the extension of that country's TPS designation are: "subsequent natural disasters and environmental challenges, including hurricanes and tropical storms, heavy rains and flooding, volcanic and seismic activity, an ongoing coffee rust epidemic, and a prolonged regional drought that is impacting food security."
In essence, the Trump administration is returning to the statutory text as it relates to termination. To explain, it is important to look at the statutory text. Section 244(b)(1) of the INA, which allows for designations, states:
In general.-The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if-
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States. [Emphasis added.]
As the Congressional Research Service (CRS) has stated, this authority now rests with the Secretary of Homeland Security.
Section 244(b)(3) of the INA deals with the review of TPS designations, as well as TPS extensions and terminations. It states:
(A) Periodic review.-At least 60 days before end of the initial period of designation, and any extended period of designation, of a foreign state (or part thereof) under this section the Attorney General, after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state (or part of such foreign state) for which a designation is in effect under this subsection and shall determine whether the conditions for such designation under this subsection continue to be met. The Attorney General shall provide on a timely basis for the publication of notice of each such determination (including the basis for the determination, and, in the case of an affirmative determination, the period of extension of designation under subparagraph (C)) in the Federal Register.
(B) Termination of designation.- If the Attorney General determines under subparagraph (A) that a foreign state (or part of such foreign state) no longer continues to meet the conditions for designation under [section 244(b)(1) of the INA], the Attorney General shall terminate the designation by publishing notice in the Federal Register of the determination under this subparagraph (including the basis for the determination). Such termination is effective in accordance with subsection (d)(3), but shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension under subparagraph (C).
(C) Extension of designation.-If the Attorney General does not determine under subparagraph (A) that a foreign state (or part of such foreign state) no longer meets the conditions for designation under paragraph (1), the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months). [Emphasis added.]
Not to denigrate a coffee rust epidemic, it appears to have no connection to the earthquakes that prompted El Salvador's TPS designation to begin with.
Again, respectfully, the idea that returning to the statutory text of a limited delegation of authority by Congress is a change in the executive branch's policies or practices that would trigger the APA is nothing less than exceptional.
Judge Chen also selectively identifies statements made by the president (including when he was then-candidate Trump) to find that "there are serious questions as to whether the terminations of TPS designations could 'reasonably be understood to result from a justification independent of unconstitutional grounds,'" in particular "whether there is evidence that President Trump harbors an animus against non-white, non-European aliens which influenced his (and thereby the Secretary's) decision to end the TPS designation."
One of those excerpts reads as follows:
In February 2018, President Trump gave a speech at the annual Conservative Political Action Conference where he used MS-13 — a gang with many members having ties to Mexico and Central America — to disparage immigrants, indicating that that they are criminals and comparing them to snakes. See Degen Decl., Ex. 93 (article from www.vox.com); see also Degen Decl., Ex. 98 (New York Times article) (stating that President Trump characterized undocumented immigrants as "'animals'").
Here is the section of the referenced speech in which he referred to MS-13, according to the official White House transcript:
In 2017, we brought cases against more violent offenders than any administration in a quarter of a century — more than any administration. And we're just gearing up. We have tough people. I'll tell you what — when you deal with MS-13, the only thing they understand is toughness. They don't want anything. All they understand is toughness. If that ICE agent or Border Patrol agent is tougher than them, they respect him. We got the toughest guys you've ever seen. We got tough. (Applause.) They don't respect anything else. And they shouldn't be in our country. They were let in for years. They shouldn't be, and we're getting them out.
Our administration prosecuted more people for federal firearm charges than has been done in more than a decade. And again, we're just gearing up. We've convicted 1,200 gang members and nearly 500 human traffickers. (Applause.) You know what human trafficking — who would think that we have this in this age? And with our foreign partners, we've helped charge or arrest more than 4,000 members of the savage gang that we talked about — MS-13.
Now, they don't like guns. You know why? They're not painful enough. These are animals. They cut people. They cut them. They cut them up in little pieces and they want them to suffer. And we take them into our country because our immigration laws are so bad. And when we catch them — it's called catch-and-release — we have to, by law, catch them and then release them. Catch-and-release. And I can't get the Democrats — and nobody has been able to for years — to approve common-sense measures that, when we catch these animal-killers, we can lock them up and throw away the keys. (Applause.) [Emphasis added.]
You can judge the president's statements for yourself. But here is what the Obama Treasury Department said about MS-13 in October 2012, when it designated that group "pursuant to Executive Order (E.O.) 13581, which targets significant transnational criminal organizations (TCOs) and their supporters":
MS-13 consists of at least 30,000 members in a range of countries, including El Salvador, Guatemala, Honduras, and Mexico, and is one of the most dangerous and rapidly expanding criminal gangs in the world today. MS-13 is active within the United States, with at least 8,000 members operating in more than 40 states and the District of Columbia. MS-13's criminal nature can be seen in one of its mottos, "Mata, roba, viola, controla" ("Kill, steal, rape, control"). Domestically, the group is involved in multiple crimes including murder, racketeering, drug trafficking, sex trafficking and human trafficking including prostitution. The group frequently carries out violent attacks on opposing gang members, often injuring innocent bystanders. MS-13 members have been responsible for numerous killings within the United States. [Emphasis added.]
Again, and assuming that such statements are fair game for the judge's decision, the question remains whether the Trump administration could ever terminate TPS for any country.
I expect the Department of Justice to appeal Judge Chen's order to the Court of Appeals for the Ninth Circuit.