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SCOTUS: Trump Can End Protected Status for 350,000 Venezuelan Immigrants ... For Now

AP Photo/Alex Brandon

Argument season has concluded at the Supreme Court. However, we have not quite reached Decision Season.

Today's ruling from the high court has something in common with a less welcome ruling it issued on Friday. They both apply to the subjects of immigration and deportation policy. And neither of them are the last word, although today's may have immediate consequences for the immigrants to whom it matters. In an unsigned order, the Supreme Court stayed a district court injunction preventing the White House from ending the Temporary Protected Status for 350,000 Venezuelan immigrants, which means that the Department of Homeland Security can proceed with deportation proceedings.

"For now," as the New York Times takes care to mention:

The Supreme Court on Monday let the Trump administration, for now, remove protections from nearly 350,000 Venezuelan immigrants who had been allowed to remain in the United States without risk of deportation under a program known as Temporary Protected Status.

The court’s brief order was unsigned and gave no reasons, which is typical when the justices rule on emergency applications. No vote count was listed, although Justice Ketanji Brown Jackson noted that she would deny the administration’s request.

The justices announced they would allow the Trump administration to end the protections pending appeal of the case, potentially allowing the administration to move ahead with deportations. The justices also clarified, however, that they would preserve the ability of individual immigrants to bring some legal challenges if the government tried to cancel their work permits or to remove them from the country.

For now. The order reverses a loss for DHS in the challenge to their decision on TPS, brought in a court in northern California. Judge Edward Chen ruled for the plaintiffs enjoined Kristi Noem from enforcing a February 5 reversal of TPS status for Venezuelans. The Ninth Circuit upheld the injunction while it reviews the case on appeal, suggesting they see plaintiffs as likely to prevail on the merits,  but clearly the Supreme Court isn't as sure about that assumption. In fact, there's a question as to whether TPS status decisions are subject to judicial review, at least at DHS:

On March 31, 2025, Judge Edward Chen, a federal judge in San Francisco, ordered the department to continue TPS for Venezuelans. See National TPS Alliance, et al., v. Kristi Noem et al., No. 3:25-cv-01766 (N.D. Cal. Mar. 31, 2025). The court did so even though the TPS statute says that TPS decisions are not subject to judicial review.

That appears to be accurate under Title 8, Chapter 1, which has no provision for judicial review in policy matters for TPS grants. These policies operate within the executive branch's foreign policy decisions, where a president's power and authority reach the constitutional zenith. TPS waivers are granted under that authority without direction from Congress or in any way approaching judicial engagement, and the same authority should be considered sufficient for a decision to end that status. Theoretically speaking, anyway.

Practically speaking, the sudden change in status of 350,000 residents will likely get the attention of a judge or two. That doesn't make them correct, but people should expect that these sharp changes in direction will have to fight through the courts. 

Does this apparent 8-1 decision to vacate the stay indicate that the Supreme Court will rule in favor of the Trump administration on the merits? That does seem more likely than not, but the court could have just taken the challenge itself and mooted it if the justices desired. This will have the same effect for the length of time that it will take either side to seek and get cert after the Ninth Circuit completes its review. The order today will remain in effect "the sending down of the judgment of this Court," assuming cert is granted after any action by the Ninth Circuit.  By the time the Supreme Court gets around to taking the case, hearing arguments, and issuing a ruling, Noem and DHS can and probably will move a lot of the immigrants within the TPS aegis back to Venezuela.

That may be long enough, practically speaking, no matter what the final decision from the Supreme Court would be. Still, it remains an open question until such time as the Supreme Court hears the case and rules on the merits.

The same can be said for the Supreme Court's per curiam decision (as opposed to an order) Friday on the use of Alien Enemies Act to deport alleged gang members and organized-crime offenders from the US. This was a temporary injunction, not a full and complete ruling, on the current process being used for AEA deportations. The court mainly issued this injunction to prevent another 'mistaken' deportation after the expulsion of Kilmar Abrego Garcia -- and the administration's expressions of impunity over the reach of judicial writ:

Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA—including transporting them from their detention facility to an airport and later returning them to the facility. See Supp. App. to Reply 1a−5a. Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief. See Application To Vacate Injunction in Noem v. Abrego Garcia, No. 24A949 (Apr. 7, 2025), pp. 11−20. 

In other words, the Supreme Court has now responded to what it sees as bad-faith arguments from the Trump administration by stopping up the entire works ... for now

The media reported that the court had rejected the authority of the executive branch to deport Tren de Aragua and MS-13 members under the AEA, but that's not what this decision did. It remanded the cases back to the Fifth Circuit to determine whether the detainees had been given adequate access to habeas motions that might dispute the government's characterization of them as such gang members. They have not yet ruled on the use of the AEA outside of declared wars; also, the order notes that "the Government may removed the named plaintiffs or putative class members under other lawful authorities." 

As Justice Brett Kavanaugh acknowledged in a concurrence, the court wants to ensure due process before removals after the experience with Abrego Garcia:

The injunction simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed. The underlying legal questions that the courts may need to decide before the removals occur include: (i) whether the Alien Enemies Act (as distinct from the ordinary removal process under the Immigration and Nationality Act) authorizes removal of these detainees and (ii) if so, what notice is due before removal. 

In both cases, via different tactics, the Supreme Court has not settled anything, at least not permanently. Instead, they have taken action to preserve due process while respecting executive authority, reserving final judgment for a reasoned look at the law and its applications. We have not yet exited the for now season.

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