After signing into a law an amnesty omnibus boondoggle as a means of ending a shutdown standoff, it unfortunately appears that the Trump Administration is not yet done with its immigration-related capitulations.
On Thursday, Axios reported that the Administration is opting not to appeal a rogue decision last October from the U.S. District Court for the Northern District of California that halted the Administration’s efforts to rescind “Temporary Protected Status” (TPS) for aliens presently in the United States from Sudan, El Salvador, Haiti, and Nicaragua. As the Department of Homeland Security announced, the Administration is instead planning to abort its plans to rescind TPS. Instead, Homeland Security will automatically extend the TPS amnesty for the affected beneficiaries through January 2, 2020.
Legally, there is no reason not to appeal this rogue judge’s preliminary injunction that infringes on our national sovereignty. On the substantive policy merits, furthermore, the failure to appeal amounts to de facto amnesty for what Axios reports are 300,000 aliens. That is not a small number!
Here are three reasons why the Administration is wrong to refuse to appeal this judicial order.
1. TPS Has Been Lawlessly Expanded Far Beyond Its Policy Intent. TPS was initially promulgated as part of the Immigration Act of 1990. According to the statutory text, the Administration may designate TPS status when there is “an ongoing armed conflict” in the alien’s home state, “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the [alien’s home] state resulting in a substantial, but temporary, disruption,” or the alien’s home state is otherwise “temporarily [unable] to handle adequately the return to the state of aliens who are nationals of the state.” As the name of the program suggests, Congress’ goal in establishing TPS was to provide for “temporary” deportation relief for those aliens who are currently in the United States on a visa while a civil war or environmental disaster breaks out in the alien’s home state; Congress did not intend, as Daniel Horowitz argues, to establish an “amnesty program for illegal aliens or as a mass migration scheme…from impoverished or even dangerous” nations. TPS, quite simply, was never intended to be continually renewed by presidential administration so as to effectively serve as a decades-long mass amnesty blanket provision. El Salvador, which in the past has been the host nation of up to half of all TPS beneficiaries, happens to be the native hub of the deadly MS-13 gang. But whether the underlying situation is an earthquake in El Salvador or a hurricane in Honduras, habitual 18-month TPS renewals doled out despite changing circumstances flouts Congress’ intent — not to mention the plain text of the operative statute. As Dan Stein of the Federation for American Immigration Reform succinctly stated last May, “Twenty years is enough time for any country to return to some semblance of normalcy after a natural disaster. Normal does not mean ideal.” And as Horowitz writes today, “[p]ursuant to law, TPS should have expired for Sudan in 1997, Nicaragua in 1998, El Salvador in 2001, and Haiti in 2010.”
2. TPS Itself Does Not Permit Judicial Review. The plenary power doctrine of immigration law essentially holds that the two political branches — and not the judicial branch — have essentially exclusive power, as a fundamental derivative of overarching national sovereignty norms, to regulate all aspects of immigration. The judiciary is generally expected to refrain from involvement in the citizenry’s attempt to regulate the physical composition of itself. Indeed, as the great Chief Justice John Marshall once opined, in 1812’s The Schooner Exchange v. McFaddon:
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
It is this notion of “consent”-based popular sovereignty — the very “We the People” of which the Constitution’s Preamble speaks — that serves as the basis of the plenary power doctrine. It is why, in the 2012 Supreme Court case of Arizona v. United States, Justice Antonin Scalia described “the power to exclude from the sovereign’s territory people who have no right to be there” as being “the defining characteristic of sovereignty.” Truly, there is no more inherently sovereignty-oriented political act than the decision to admit a new member into the body politic. That decision is, at its philosophical core, what ought to properly preclude the judiciary from improprietous meddling in the citizenry’s attempts to regulate its own makeup.
But here, with TPS, Congress left no room whatsoever for any “creative” judicial ambiguity: 8 U.S.C. § 1254a(b)(5)(A) states, “There is no judicial review of any determination of the [secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” That is emphatically clear statutory language! From what source are federal judges claiming authority to review the Trump Administration Department of Homeland Security’s decision to rescind TPS status for certain population subsets? This statutory provision alone should have led the Administration to appeal this lawless preliminary injunction.
3. The Legal And Policy Precedents Set By This Move Are Terrible. There are potentially dire consequences of the Administration’s strategic fecklessness, in refusing to appeal the rogue order precluding the unilateral rescinding of TPS status. By refusing to appeal the order, the Trump Administration perversely incentivizes leftist #resistance judges across the nation to further stifle the political branches’ plenary responsibilities to regulate and limit immigration. More generally, by refusing to appeal a “nationwide injunction,” the Administration risks the insidious solidification in our legal culture of these tyrannical district court diktats as being something other than flagrantly unconstitutional. The Administration also perversely incentivizes many Salvadorans and Nicaraguans to make the dangerous trek — almost always led by transnational drug cartels and human trafficking rings — north, invade our border in illegal “caravan”-style fashion, and thereby hope to eventually benefit in the future from de facto permanent TPS amnesty. The predictable result of the Administration’s shortsightedness is therefore twofold: Perverse incentivizing of judicial tyranny and perverse incentivizing of dangerous treks for would-be amnesty seekers.
If nothing else, this episode ought to serve as a stark reminder for conservatives to remain constantly vigiliant and ever wary of possible betrayal. Trump has shown himself in the past to be receptive, at times, to pushback from conservative media. But he, and the Administration more broadly, can only be receptive to our concerns if we are diligent in identifying and articulating those concerns. Constant vigilance, here, is but one price we must pay in our attempted efforts to keep the Administration substantively in line and loyal to foundational conservative principles.