Supreme Court Opinions: TPS, Asylum and More

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**Brian Lehrer** (0:40)
Brian Lehrer on WNYC.
Today was an opinion day at the Supreme Court, and with the end of the term approaching, they're down to the most consequential cases that take the longest to settle. They released four opinions in controversial areas of immigration and guns, plus the case involving the weed killer Roundup. We'll find out more about today's opinions now with Leah Litman, Professor of Law at the University of Michigan, a former Supreme Court clerk, a co-host of the podcast, Strict Scrutiny, largely a Supreme Court podcast, and the author of the book Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Professor Litman, thank you for doing the speed read of four decisions for us. Welcome back to WNYC.

**Leah Litman** (1:29)
Thanks for having me.

**Brian Lehrer** (1:31)
I'll note that three of the four majority opinions were written by Justice Alito, so that may be a hint of how things went. Let's start with the two immigration cases to do with temporary protected status or TPS and with turning people away at the border. The TPS case, Mullin versus Doe, this case was an attempt to block the Trump administration from ending TPS for the hundreds of thousands of Haitian and Syrian nationals living in the country. What did the court rule?

**Leah Litman** (2:01)
Here, the court made two pretty astonishing claims. First, the court said that any claims about how the executive branch had failed to follow the statutes, the congressional laws that Congress had passed to restrict how the executive branch decides whether to end TPS, courts can't review those claims at all. So that even if the executive branch openly flouted those statutes, even if they concededly violated them, there is nothing that a court can do. And indeed that kind of seemed to be the case here. So what the court concluded is, the statutes did not allow for any judicial review. They intimated that Congress had decided to prohibit the federal courts from assessing whether the executive branch had complied with the obligations that Congress imposed on the executive branch.

**Brian Lehrer** (2:51)
Quick follow up question then, because I really don't understand. We have the separation of powers in this country, legislative, executive and judicial.
The legislative branch, Congress, can just pass a law saying, oh, we're going to lock out the judicial branch on this one. They can do that?

**Leah Litman** (3:10)
They can, but usually courts will say Congress only did that if Congress was abundantly and explicitly clear.
Here, I think it's fair to say that the six Republican appointees in Justice Alito's majority bent over backwards to insulate as much of the executive branch's decision-making as they could. Because no one questioned that the statutes prohibited courts from second-guessing whether the Secretary of Homeland Security was correct to conclude that conditions in the country had changed. What was up for dispute was whether the secretary had complied with the various processes and procedures that Congress had laid out. And what Justice Alito said is the statutes insulate the secretary's termination, and that includes not just the decision, but every single step leading up to the decision.

**Brian Lehrer** (4:01)
So what does this mean for the Syrians and Haitians here who genuinely fear danger if they're forced to return to their countries of origin?

**Leah Litman** (4:11)
It is frankly devastating. As Justice Kagan suggests in her dissent, this opinion could have life or death consequences. Writing for the three Democratic appointees, she said that the TPS, the Temporary Protected Status Recipients, should not, quote, be consigned to devastating and indeed life-threatening injury. Conditions in Haiti are so poor that some of the plaintiffs with serious medical conditions will not be able to obtain life-saving health care access. And other plaintiffs could be subject to religious persecution, kidnapping or violence.

**Brian Lehrer** (4:48)
The other immigration case decided this morning was Mullen vs. El Otro Lado.
This has to do with the policy of turning away would-be refugees at the border when the system is deemed overburdened. I think they call this the Remain in Mexico Policy also. Another 6-3 decision written by Justice Alito. What does this one do?

**Leah Litman** (5:10)