The Volokh Conspiracy
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Supreme Court Allows DHS to Suspend Temporary Protected Status for Venezuelans
The latest SCOTUS order shows the justices are taking a more nuanced approach to district court injunctions of Trump Administration policies than its critics, left or right.
Today, over a lone noted dissent, the Supreme Court stayed a district court injunction barring the Department of Homeland Security from terminating Temporary Protected Status for Venezuelans in the United States. The unsigned order in Noem v. National TPS Alliance noted that Justice Jackson would not have granted the stay.
The order was not an unqualified victory for the Trump Administration, as it does not extent--and expressly does not prejudice--challenges to the Administration's withdrawal of other benefits or status designations for TPS beneficiaries. Those questions will be litigated separately.
The Court's action was likely driven by the justices' conclusion that the federal government is likely to prevail on the merits, as the decision whether to confer, maintain, or terminate TPS is largely discretionary. Indeed, it is not even clear TPS decisions are subject to judicial review (as the Administration argued in its stay application).
The Court's order also highlights that, even within the constraints of the emergency docket, the justices are considering each application for relief on its own terms, and will police district court overreach where such overreach is clear. So while a majority of justices will not allow the Trump Administration to summarily deport individuals under the Alien Enemies Act without providing for adequate process, it is will also prevent individual district court judges from enjoining policy decisions that are clearly within the discretion of the administration.
This approach may not satisfy partisans, or those who presume the Trump Administration is entitled to prevail (or should be stymied) on every question (often without acknowledging, let alone understanding, the legal questions at hand), but it suggests the justices are endeavoring to pay attention to what the law actually allows or requires.
