WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a brief in the Supreme Court opposing an effort by anti-borders activists to extend Temporary Protected Status (TPS) for Venezuelans further into the future. Under a statute, the Secretary of Homeland Security may determine whether persons from a given country, because of disastrous conditions in their homeland, may live in the United States for a set period of time, and may renew this status for further such periods if conditions warrant.
Just before leaving office, Biden’s Secretary of Homeland Security, Alejandro Mayorkas, extended TPS for Venezuelans for an additional 18 months. President Trump’s Secretary of Homeland Security, Kristi Noem, reached a contrary determination, and vacated that extension. Plaintiffs claim that Noem acted unlawfully in doing so, arguing that the statute bars a secretary from reconsidering prior actions. The district court hearing the case adopted plaintiffs’ view, and postponed Noem’s action while the case proceeds.
In its brief supporting the government’s application to the Supreme Court to stay or suspend this order, IRLI shows that, according to longstanding Supreme Court precedent, the President, as Commander-in-Chief, has inherent authority to protect the nation by excluding aliens. This means that plaintiffs are unlikely to succeed in their claim, because Noem’s action was taken at the direction of the President in an executive order, and was thus presidential action the courts lack jurisdiction to review.
IRLI also shows that plaintiffs’ interpretation of the TPS statute—namely, that it precludes the secretary from vacating prior extensions—even assuming it is permissible, is far from the only interpretation to be had. Another, at least equally sound interpretation is that the TPS statute implicitly allows such vacatur—and the latter interpretation is to be preferred, because it avoids the conflict the former creates here between the statute and the President’s inherent, constitutional authority.
“The Supreme Court has repeatedly recognized the President’s inherent authority to exclude aliens, and ‘inherent’ clearly means he may exercise it even when he is not guided by a specific statute,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Because the President has this power, and the secretary was acting as his agent, plaintiffs’ claims must fail in both of the ways we describe. We hope the Court recognizes this vital presidential authority once again, and grants the stay.”
The case is Noem v. National TPS Alliance, No. 24A1059 (Supreme Court).
