This is not the first time the Supreme Court has considered the Trump administration’s plans to terminate humanitarian protections for migrants. Months before the cases involving Haitian and Syrian immigrants landed at the court, the justices allowed the administration to move forward with its plans to lift protections for more than 300,000 Venezuelan immigrants who had been living in the United States under the program known as Temporary Protected Status.
That October ruling was the second time last year that the court issued an emergency order providing technically temporary authorization for the administration to revoke protected status while litigation over the issue was underway. The justices had previously issued a similar order, in May. But those brief orders on the Venezuela matter did not include the justices’ legal reasoning, so it’s difficult to tell why the justices ruled as they did, or whether their reasoning at the time offers clues as to how the court will resolve the two new cases it hears on Wednesday.
In its October order regarding Venezuelan migrants, the three liberal justices noted their dissent. Justice Ketanji Brown Jackson sharply criticized her colleagues for using their power to “allow this administration to disrupt as many lives as possible, as quickly as possible.” The majority, she wrote, was wrongly “privileging the bald assertion of unconstrained executive power over countless families’ pleas for the stability our government has promised them.”
In defending the administration’s position in the current cases, D. John Sauer, the solicitor general, said the lower court judges should have followed the Supreme Court’s direction in its orders relating to Venezuelan migrants. Had the lower courts taken those unexplained orders as precedents, they would have ruled for the administration and allowed it to end T.P.S. for Haitians and Syrians, the two groups that will be considered at Wednesday’s argument.
But those lower court judges noted that the justices’ order did not include any substantive reasoning. They concluded that the cases before the court on Wednesday are meaningfully distinct from the Venezuela matter, which had involved complex diplomatic negotiations.
President Trump tried during his first term to end temporary protection for immigrants from Haiti. That decision was also challenged in the lower courts. The legal questions were never fully resolved before Joseph R. Biden Jr. was elected president, and his administration chose to keep Haiti in the program.
