SCOTUS allows one big anti-immigrant Trump policy to take effect

More than 600,000 Venezuelans in America could have their legal status cut by Sec. Noem's decision. And: Lower courts face improprieties in Trump admin deportations.

President Donald Trump is seeking to implement a lawless, heartless, process-free anti-immigration system with racist underpinnings — guided by Stephen Miller and helped along by Homeland Security Secretary Kristi Noem, Attorney General Pam Bondi, and others. The Republican congressional leadership has essentially acceded to Trump on this front. Within our constitutional structure, then, that leaves the courts.

On Monday, we saw — for better or worse — the current judicial system in action.

Although the U.S. Supreme Court has drawn some lines around the edges to set forth what is acceptable, particularly as to Trump’s desire to use the wartime power of the Alien Enemies Act while providing little to no real process to those people the administration is seeking to deport under the law, the question of what it will do outside of that narrow area is more in question.

The Supreme Court has generally shown significant deference to the president when it comes to areas involving foreign policy — including immigration — and the military, and it’s not clear this court is prepared to change that much despite Trump’s extreme anti-immigrant actions.

Monday provided one alarming piece of evidence when, with no reasoning provided, the Supreme Court allowed Noem’s decision to vacate Temporary Protected Status for hundreds of thousands of Venezuelans in the U.S. to take effect as litigation proceeds.

This decision — which ends TPS for approximately 350,000 people immediately — was issued with no reasoning and in the face of a 78-page district court ruling that found Noem’s rationale for her action to be “entirely lacking in evidentiary support.”

Specifically, of Noem’s purported rationale for ending TPS for approximately 600,000 Venezuelans — vacating Biden administration DHS Sec. Alejandro Mayorkas’s Jan 17 action extending the Venezuela TPS for 18 months, through October 2026 — U.S. District Judge Edward Chen wrote, “Generalization of criminality to the Venezuelan TPS population as a whole is baseless and smacks of racism predicated on generalized false stereotypes.” (TPS for the remaining Venezuelans is set to end September 10.)

The U.S. Court of Appeals for the Ninth Circuit had refused to block Chen’s ruling, but, on Monday, the Supreme Court did so — and only Justice Ketanji Brown Jackson noted her dissent.

Although we don’t know the vote on a shadow docket matter like this, the second paragraph of the order does suggest that at least one of the other Democratic appointees — Justices Sonia Sotomayor and Elena Kagan — likely joined the order. (It is also possible that Justice Amy Coney Barrett pushed for that language.)

What does that paragraph mean? EADs are “Employment Authorization Documents,” and the other forms relate to a person’s legal status. Essentially, the paragraph is saying that a person could still challenge any attempt to invalidate those documents if they already reflect the October 2026 extension.

However, Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council noted that, due to the narrow period of time between when Mayorkas extended TPS on January 17 and Noem’s action to vacate the order formalized on February 3, “virtually no one” would have documents with the October 2026 date on them.

Reichlin-Melnick called it “the single largest mass-illegalization event in US history. 350,000 people woke up this morning with legal status, living and working here with official permission. They'll go to bed as undocumented immigrants facing deportation.”

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Meanwhile, lower courts are dealing with two separate cases where significant questions have been raised about improprieties in how the Trump administration removed two people from the U.S.

In one case, a panel of the U.S. Court of Appeals for the Fourth Circuit, on a 2-1 vote, denied the Justice Department’s request to stay a district court’s order that the administration “facilitate” the return of Cristian, a pseudonym given to a man the administration sent to the CECOT prison in El Salvador on March 15 under the AEA.

The problem in Cristian’s case goes beyond any problem with Trump’s AEA proclamation, though, Cristian was a member of a class-action settlement with the federal government in which the government agreed not to deport him until it ruled on his asylum claim. As of March 15, it hadn’t. And yet, it still deported him.

U.S. District Judge Stephanie Gallagher, the Trump appointee who is overseeing that settlement agreement, issued an opinion on April 23 agreeing that Cristian’s removal was not allowed under the settlement and an order that same date that the government facilitate his return.

DOJ fought back, including by issuing an “Indicative Asylum Decision making clear that, if Cristian returned, it would deny his asylum application” and, as such, asking Gallagher to vacate the related part of her order. Gallagher said no, but gave DOJ time to appeal.

DOJ asked for a stay pending appeal at the Fourth Circuit, and Judge DeAndrea Gist Benjamin, a Biden appointee, wrote for her and Judge Roger Gregory, a Clinton appointee, the main opinion denying the request.

“Here, Cristian was removed from the United States in breach of the Settlement Agreement,” Banjamin wrote. “The argument that the Government would be ‘irreparably harmed’ by facilitating Cristian’s return rings hollow.“

Judge Julius Richardson, a Trump appointee, dissented, asserting that AEA removals do not violate the settlement at all and questioning the language of the district court’s order — specifically, its description that facilitating includes “a good faith request by [the U.S. government] to the government of El Salvador to release Cristian to U.S. custody.” That, Richardson insisted, is “court-commanded negotiation with a foreign state“ and goes beyond a court’s role.

Not so, Benjamin countered.

“The dissent chastises the district court for going beyond what the Supreme Court and this court endorsed in Abrego Garcia. That could not be further from the truth,” she wrote, referring to the case of Kilmar Abrego Garcia, who was deported on a non-AEA flight on March 15 in an “administrative error,” as the government admitted. Benjamin went on to quote from the Fourth Circuit’s prior opinion in Abrego Garcia’s case, where Judge J. Harvie Wilkinson wrote that “facilitate” is “an active verb.”

As to questioning Gallagher’s use of “good faith request,” Benjamin noted, “The Supreme Court could not have possibly contemplated permitting the Government to act in bad faith when facilitating a wrongfully removed individual’s return—that would defy logic.”

Gregory also wrote his own concurring opinion, primarily to issue his opinion that the AEA proclamation itself is “plainly invalid“ — but also to question Richardson’s dissent:

In the final case, U.S. District Judge Brian Murphy will be hearing arguments on Wednesday as to whether he should issue an order that the government facilitate the return of O.C.G., a gay man whose lawyers say is currently in hiding due to the Trump administration’s actions.

The facts here arose in the midst of litigation over “third country removal” — when a person is deported to somewhere other than their home country or a second country where the person has status.

The Trump administration admitted on May 16 that it had erroneously claimed that O.C.G. had denied any fear of removal to Mexico — which is not where he is from and would be a third country removal. When faced with the prospect of needing to have the officer who asked O.C.G. testify as part of the litigation, DOJ filed the “notice of errata,” explaining that a prior declaration had to be amended because DHS could find no officer who asked O.C.G. whether he feared removal to Mexico. In so doing, DOJ attached a document that disclosed O.C.G.’s identity on the court’s docket over the weekend until it was fixed.

On May 18, and as a result of these two developments, O.C.G.’s lawyers sought an emergency order from the court that the government facilitate O.C.G.’s return to the U.S. Per the filing, not only had O.C.G., who is from Guatemala, not been asked if he feared being removed to Mexico — but he had previously faced violence in Mexico.

Per Murphy’s order on Monday, DOJ is to respond to the request by 5 p.m. Tuesday and he will hold the hearing at 1 p.m. Wednesday.

And, of course, orders in either of these cases could still go up to the Supreme Court.