Repeal All Immigration Laws Stripping Court Review
The Supreme Court's TPS decision is a reminder why we need judicial review
In Mullin v. Doe, the Supreme Court upheld Department of Homeland Security (DHS) Secretary Kristi Noem’s decision to terminate Temporary Protected Status (TPS) for Haitians and Syrians. Lower courts had found that Noem violated the TPS statute by failing to “consult” with other agencies—as the law requires—during her mandated “review of the conditions” in those countries before terminating TPS.
The Supreme Court did not really disagree. Instead, it held that whether Noem violated the law does not matter because Congress stripped courts of jurisdiction even to review the statutorily mandated process behind her determination. The case shows why a future Congress should systematically repeal laws that bar judicial review, at least within the Immigration and Nationality Act (INA).
DHS’s lies about following the law
The consultation and country condition determination matter because, despite its name, TPS automatically extends indefinitely unless there is a determination that the country no longer meets the criteria for designation based on a change in its country conditions (8 U.S.C. § 1254a(b)(3)). Here is how the Supreme Court described DHS’s “consultation”:
the Secretary, either personally or through her subordinates, made a series of procedural determinations: to communicate with the State Department by email, to send a terse and unspecific email, and to proceed to terminate [Haiti and] Syria’s TPS designation after receiving a laconic answer.
That’s a sanitized version. Here is what actually happened.
DHS stated in a July 1, 2025 Federal Register notice that “after consulting with appropriate U.S. Government agencies, the Secretary reviewed country conditions in Haiti.” In reality, according to emails obtained from DHS only after the Supreme Court took the case, Secretary Noem “elected to terminate Haiti without” receiving any information about “country conditions from [the Department of State].” In other words, Noem blatantly lied.
Under pressure from a lawsuit, however, DHS issued a new Federal Register notice in November repeating its claim. This time, DHS sent State another email saying, “We are re-reviewing country conditions in Haiti... Can you advise on State’s view on the matter?” State responded 53 minutes later: “State believes that there would be no foreign policy concerns with respect to a change in the TPS status of Haiti.” In other words, there was no consultation about country conditions in Haiti. DHS conceded that this was all it did to consult. The same exact irrelevant emails were exchanged about Syria’s country conditions.
Why the law is unenforceable
The Supreme Court held that it did not matter because “the TPS judicial-review bar expressly restricts review.” The only debate before the Court was whether the bar applied to the precursor consultation requirement or only to the final decision to designate or terminate TPS for a country. Although the statute itself only says it applies to the determination, the Court held that the bar covers all precursor requirements—and that even if it did not, the final determination still could not be challenged.
By interpreting the statute this way, the Supreme Court rendered unenforceable numerous precursor requirements that members of Congress presumably expected agencies to follow. This power to strip judicial review is frighteningly dangerous. It allows Congress to pass laws that grant unconstrained powers to the executive. The majority opinion seems to embrace the void suggested by the Plaintiffs here:
a rogue Secretary in one fell swoop could issue a 50-year TPS designation, contrary to the 18-month statutory cap. Or a Secretary could terminate a TPS designation based on a coinflip. …Congress would have ample means to stop that abuse, including, for example, through the annual appropriations process.
Never mind that Congress has already ended the annual appropriations process for certain components of DHS, including the secretary’s office. More importantly, Congress cannot simply pass a law without the president's agreement, unless it amasses a veto-proof majority, which is as fanciful as a 50-year TPS designation.
The majority opinion did not apply the judicial-review bar to the challengers’ constitutional claims, but three conservative justices declined to join that part of the opinion. Justice Clarence Thomas wrote separately to say that allowing Congress to bar constitutional challenges to its laws would not raise any “serious constitutional question.” That is even more frightening.
Why Process Matters
Here, DHS violated the law and got caught, yet the courts decided they are powerless to stop the violation. The loss of these procedural elements that lead up to a decision is not without consequence. The Court’s description of DHS policymaking reflects a culture of court-sanctioned lawlessness and unaccountability: “terse, unspecific, and laconic” emails should not drive policies affecting millions of people. Nor should policy rest on, as the Supreme Court majority put it, “denigrating the character of” people based on conditions in their home countries.
Even when a decision—such as designating or terminating a TPS designation—is granted to an agency’s discretion, policy is more likely to be thoughtful, fair, and unbiased when the government runs the policy through the proper procedures. That’s the theory behind the Administrative Procedure Act’s notice and public comment rulemaking process. It obviously doesn’t guarantee it, but we have seen that even with an administration hellbent on adopting destructive policy, procedural obstacles can force improvements. The final travel ban upheld by the Supreme Court in Hawaii v. Trump during President Trump’s first term was far better and more targeted, as the majority opinion noted, than the one adopted a week after the inauguration that applied instantly in the dead of night to all passengers in the air.
Unfortunately, the TPS statute is not the only immigration statute that strips courts of jurisdiction. I counted about 18 in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, another two in the Immigration Act of 1990, three more in the Real ID Act of 2005, six more in the Immigration Reform and Control Act of 1986, six more in the USA PATRIOT Act of 2001, and three in the Immigration Nationality Act of 1952.
What Congress Should Do
Congress should immediately strip out all these provisions. They serve no purpose except to block accountability for the executive branch. The courts should be empowered to fulfill their role to interpret the law and the Constitution and vindicate our statutory and constitutional rights. Congress should also consider mandating TPS in certain circumstances, so DHS can’t decide to terminate when country conditions clearly warrant a designation.
Congress should also give less discretion to the executive branch to arbitrarily change its mind as it has here. Once someone is granted the right to live and work legally in the United States, it should take clear and convincing reasons to reverse that decision. Ending TPS and other forms of legal status of immigrants in the United States is a critical plank of the Trump administration’s mass deportation plan—an expensive way to reduce the US population by government force. Most Haitians affected by this decision entered legally, so it has no bearing on illegal immigration—something Secretary Noem also got wrong in her TPS regulatory notice.
The administration is celebrating the Supreme Court’s decision as a “tremendous win.” But its “tremendous win” obscures its manifest illegality and deceptions. Congress should not tolerate the executive branch ignoring its laws, lying to the public, and rashly adopting policies without thoughtful consideration. Americans deserve better. Congress should demand it.
