The Volokh Conspiracy
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Secretary Noem Takes it On The Chin
It's been a difficult few weeks for DHS Secretary Noem
From Judge Ana Reyes' opinion in Miot et al. v. Trump et al. (D.D.C.), a case challenging DHS' suspension of the TPS (Temporary Protected Status) program for Haitians in the U.S., on the grounds that DHS Secretary Noem "preordained her termination decision and did so because of hostility to nonwhite immigrants." [The court agreed with the challengers that they were likely to succeed on their claim, and granted their motion to stay the DHS' action].
It's pretty powerful stuff.
On December 2, 1783, then-Commander-in-Chief George Washington penned: "America is open to receive not only the Opulent & respected Stranger, but the oppressed & persecuted of all Nations & Religions." More than two centuries later, Congress reaffirmed President Washington's vision by establishing the Temporary Protected Status (TPS) program. See 8 U.S.C. § 1254a (TPS statute). It provides humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. It also brings in substantial revenue, with TPS holders generating $5.2 billion in taxes annually.
Department of Homeland Security (DHS) Secretary Kristi Noem has a different take. [From her posting on X:
"I just met with the President. I am recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches, and entitlement junkies. . . . WE DON'T WANT THEM. NOT ONE."
After a fairly exhaustive review of the facts and the relevant law - 83 pages worth - Judge Reyes writes:
"There is an old adage among lawyers. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither, pound the table. Secretary Noem, the record to-date shows, does not have the facts on her side—or at least has ignored them. Does not have the law on her side—or at least has ignored it. Having neither and bringing the adage into the 21st century, she pounds X (f/k/a Twitter).
Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the APA to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.
By accompanying Order, the Court GRANTS Plaintiffs' Renewed Motion for a Stay under 5 U.S.C. § 705.
