WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the Ninth Circuit Court of Appeals opposing an effort by anti-borders activists to preserve the Biden Administration’s extension of Temporary Protected Status (TPS) for Venezuelans. Under the TPS 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of Homeland Security, Kristi Noem, following an executive order by the President, reached a contrary determination, and rescinded that extension. Relying on the Administrative Procedure Act, 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.
In its brief on appeal of 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. That means he has inherent authority to issue the executive order Noem followed when she rescinded the designation, and also that her action was presidential action not subject to challenge under the Administrative Procedure Act.
IRLI also shows that, even if Noem acted under the TPS statute, and not the President’s executive order, that statute, to avoid constitutional conflict, should be interpreted to harmonize with the President’s inherent authority by allowing the secretary to reconsider and rescind prior agency action.
For both of these reasons, IRLI argues, the Ninth Circuit should reverse the district court’s order postponing Noem’s rescission of TPS for Venezuelans.
Concurrently with this appeal to the Ninth Circuit, IRLI has also filed a brief in the Supreme Court supporting the government’s emergency application to stay or suspend the district court’s order pending appeal.
“As in so many of the cases against President Trump, this one is an attack on his authority as Commander-in-Chief,” said Dale L. Wilcox, executive director and general counsel of IRLI. “If the President has the inherent authority to protect the nation by excluding aliens that the Supreme Court has held he has, then his executive order should be given effect. We hope the court does not ignore this vital presidential authority, and reverses the lower court.”
The case is National TPS Alliance v. Noem, No. 25-2120 (Ninth Circuit).
