Amy Howe (scotusblog.com), Supreme Court allows Trump to end protected status for group of Venezuelan nationals
The headline—about yesterday’s short, unsigned Supreme Court order in Noem v. National TPS Alliance—is accurate but misleadingly incomplete.
Some people react to Trump-related Supreme Court decisions the way they react to baseball games. This season Team Trump was down 4 to 2 to Team Resistance, but yesterday Team Trump won, so now he’s only down 4 to 3.
If this is the way you think, then I have two pieces of advice: First, stop thinking this way, and try to figure out what’s actually going on in these court cases.
Second, if you reject my first piece of advice, then don’t count this as a Team Trump loss, because this particular game is far from over.
Hint: Only Justice Jackson disagreed with yesterday’s order. The other two liberals went along with it.
This is a clue.
Here is what the controversy appears to be about. Current law affords any President discretion—and listen up, I said “discretion”—to grant temporary protected status to immigrants who cannot safely return to their country. Recently, Team Trump exercised that discretion to pull protected status from several hundred thousand Venezuelans. Team Trump cited no evidence that conditions in Venezuela had changed for the better. Instead, their discretionary decision was based on factually unsupported bullshit about Tren de Aragua, etc., etc., etc., etc.
Now, what is a court supposed to do with this shambolic mess? Should it rule that a president lacks legal power to exercise lawful discretion if his reasoning is bullshit and arrant nonsense? Or is that approach a bridge too far in terms of constitutional separation of powers?
Yesterday, the Supreme Court decided to kick the can down the road for a mile or two. In July, the Ninth Circuit Court of Appeals is going to hear the case “on the merits” (as we shysters say). And in the meanwhile, individual Venezuelans about to be deported are entitled to a judicial hearing. So observed the Supreme Court in passing.
I’m not a mind reader, but I assume that’s why Justices Kagan and Sotomayor went along with the majority.
So this particular game isn’t over—at least not yet. But I think that the interference-with-presidential-discretion argument may, in the end, carry the day. It’s always problematic to create a legal rule that says, “You are hereby forbidden to act like an asshole and a jerk.” The courts may deem in prudent to retreat to a rule that says “You are hereby forbidden to exercise legal authority that you clearly don’t have.”
And that would mean disaster for more than a million Venezuelans, Haitians, Nicaraguans, and Cubans now residing in the United States–people whose lives may be shattered on the alter of judicial restraint.
Facing MAGA 