Activists Push to Keep Haitian and
Venezuelan TPS Going
FAIR shows Trump may cut off never-ending extensions of “temporary” status
WASHINGTON—The Federation for American Immigration Reform (FAIR) has filed a brief in Massachusetts federal district court opposing an effort by anti-borders activists to extend Temporary Protected Status (TPS) for Haitians and 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.
Before leaving office, former President Biden’s Secretary of Homeland Security, Alejandro Mayorkas, extended TPS for Haitians and Venezuelans. President Trump’s Secretary of Homeland Security, Kristi Noem, reaching contrary determinations, vacated those extensions. Plaintiffs claim that Noem acted unlawfully in doing so, arguing that the statute bars a secretary from reconsidering prior actions.
In its brief supporting dismissal of plaintiffs’ case, FAIR 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 claim must fail, 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.
FAIR 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 her to vacate prior actions—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 FAIR. “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, and dismisses this case.”
The case is Haitian-Americans United v. Trump, No. 1:25-cv-10498 (D. Mass.).
