SCOTUS allows the Trump admin to end legal status for another half-million people

Friday's order allows DHS to cancel immigration parole for about 500,000 Cubans, Haitians, Nicaraguans, and Venezuelans. Also: SCOTUS backs agency deference.

[Correction: Due to overlap between the Temporary Protected Status and parole programs, the total number of people affected will be less than the total number of legal status rescissions. As such I have altered the headline and the later paragraph discussing that number. Apologies for the confusion.]

The U.S. Supreme Court on Friday issued an order allowing the Trump administration to end immigration programs during litigation that provided legal status for about 500,000 people.

Because of the Supreme Court’s order, about a half-million Cubans, Haitians, Nicaraguans, and Venezuelans lawfully in this country under a two-year parole program initiated under the Biden administration will become “undocumented, legally unemployable, and subject to mass expulsion on an expedited basis,” as the challengers made clear in opposing the government’s request.

Homeland Security Secretary Kristi Noem issued a mass-cancellation of those parole decisions in March, which a district court had blocked during litigation. At the Supreme Court, however the Justice Department argued that the “district court has nullified one of the Administration’s most consequential immigration policy decisions” by issuing the stay.

Now, with the Supreme Court’s order, the Trump administration will be allowed to implement the parole revocation, even as litigation over that revocation is supposed to be allowed to continue.

Justice Ketanji Brown Jackson dissented, joined by Justice Sonia Sotomayor.

[S]omehow, the Court has now apparently determined … that it is in the public’s interest to have the lives of half a million migrants unravel all around us before the courts decide their legal claims,” she wrote.

No other justice wrote to explain their decision, and because it was a shadow docket request, the vote is not even public.

Jackson made clear the inherent flaw in the court’s decision, writing that the court “plainly botched” its handling of the matter. Discussing the standard requirement of a showing of irreparable harm to get a stay, Jackson wrote of the majority’s non-decision, “It requires next to nothing from the Government with respect to irreparable harm. And it undervalues the devastating consequences of allowing the Government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.”

Jackson went much further, however, explaining plainly how Friday’s decision failed to adhere to any of the basic principles for determining whether to grant a stay.

“What stays are about, at their core, is an equitable assessment of who will be harmed, and to what extent, during the litigation process, with the ultimate goal of reducing the real-world consequences of the unavoidable, pending-case-related delay,” Jackson wrote. Addressing the loss of legal status and the choices that would force upon people — leave the U.S. to return to a country in potential strife or stay and face possible government removal — Jackson notes that Friday’s stay could ultimately “deprive this Court of jurisdiction” to even consider the case. “At a minimum, granting the stay would facilitate needless human suffering before the courts have reached a final judgment regarding the legal arguments at issue, while denying the Government’s application would not have anything close to that kind of practical impact.”

The Friday order granting that stay followed the May 19 decision similarly allowing the administration to end Temporary Protected Status for approximately 600,000 Venezuelans during litigation.

In all then, the Supreme Court has allowed the Trump administration to end the legal status of nearly a million people on the shadow docket and in opposition to four court rulings — two district court rulings and two appellate rulings denying the government’s request for a stay pending appeal.¹

With a small carveout for the complete lawlessness with which President Donald Trump and his administration have attempted to carry out deportations, the Supreme Court is increasingly signaling that, as Jackson put it on Friday morning, “[T]he Court allows the Government to do what it wants to do regardless [of the consequences], rendering constraints of law irrelevant and unleashing devastation in the process.”

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Diminishing regulations, in any way possible

On Thursday, the Supreme Court issued a decision suggesting that last year’s decision ending agency deference might not apply when that agency deference results in less regulation than the courts want to give.

Last year, Chief Justice John Roberts told us that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning” and that “agencies have no special competence in resolving statutory ambiguities. Courts do.“

The decision in Loper Bright Enterprises v. Raimondo, ending so-called Chevron deference to those agencies, was broadly seen — and had been pursued — as a way for conservatives to cut back allegedly oppressive agency regulations.

On Thursday, however, Justice Brett Kavanaugh — joined by Roberts — told us that the U.S. Court of Appeals for the D.C. Circuit did not give an agency enough deference.

The case, Seven County Infrastructure Coalition v. Eagle County, Colorado, was over the U. S. Surface Transportation Board’s treatment of a proposed railroad line in Utah and, specifically, its assessment of that project under the National Environmental Policy Act (NEPA). The D.C. Circuit held that the board, in its NEPA report, did not do enough.

As Kavanaugh wrote, the appeals court “faulted the EIS for not sufficiently considering the environmental effects of projects separate from the railroad line itself—primarily, the environmental effects that could ensue from (i) increased oil drilling upstream in the Uinta Basin and (ii) increased oil refining downstream along the Gulf Coast of Louisiana and Texas.“

Although the majority also disagreed with the D.C. Circuit on a substantive ground, it is notable that Kavanaugh and the court’s first objection was that “the central principle of judicial review in NEPA cases is deference.”

Here is how Kavanaugh described the standard (certain to be employed malleably):

As a general matter, when an agency interprets a statute, judicial review of the agency’s interpretation is de novo. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392 (2024). But when an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard. Under that standard, a court asks not whether it agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained.

Ultimately, this just shifts the question. Now, the litigation will be wholly focused, at the outset on whether the action is “discretion granted by a statute.“

More broadly, when the conservative majority believes an agency has gone too far, it can pull the Loper Bright lever and explain the “single, best meaning” of the statute. But, when a lower court goes too far, it — or, now, appeals courts — can pull the Eagle County lever and explain that the lower court did not provide sufficient deference to the agency.

Notably, the liberal justices appeared to understand this aspect of what was going on here. In an opinion by Justice Sonia Sotomayor concurring in the judgment, she wrote for her and Justices Elena Kagan and Ketanji Brown Jackson that the majority “unnecessarily ground[ed] its analysis largely in matters of policy.“

For them, deferring to the board obviously makes sense — consistent with Kagan’s dissent in Loper Bright. As Sotomayor wrote:

[A]gencies often are “better equipped to assess what facts are relevant to the[ir] . . . own decision than a court is.” Ante, at 10; cf. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 456 (2024) (KAGAN, J., dissenting) (“[A]gencies often know things about a statute’s subject matter that courts could not hope to”).

Then, however, Sotomayor dropped a footnote:

Of course, that point applies equally when an agency decides that an environmental impact is relevant to its decision.

Whether the conservative majority would agree is a question left hanging.

1. This paragraph was added after initial publication, with the final update at 3:00 p.m. Saturday.