SCOTUS Emergency Docket Gives Trump a Win on Immigration

Battery Park Rally Against Trump's Immigration Ban. Courtesy of Wikimedia Commons.

On October 3, the Supreme Court allowed the Trump Administration to remove temporary legal protections for over 300,000 Venezuelan immigrants. The Court issued an emergency order, which put a hold on a lower court’s ruling that found the administration's attempts to end Temporary Protected Status (TPS) programs to be unlawful. The hold will remain as long as Noem v. National TPS Alliance continues through the appeals process, leaving thousands of Venezuelans with the fear of imminent deportation to a highly dangerous environment.  

Congress created TPS in 1990 to provide provisional protection against deportation for immigrants whose home countries are facing war, natural disasters, or other temporary, dangerous conditions. TPS is granted to immigrants from its designated countries for up to 18 months, authorizing them to work in the U.S. during that period. In 2021, Alejandro Mayorkas, the Secretary of the Department of Homeland Security (DHS) under the Biden Administration, selected Venezuela for the TPS program due to its ongoing humanitarian crisis. He redesignated it in 2023 and extended the program in 2025. The extension granted Venezuelan immigrants protection until October 2026. However, Kristi Noem, the current Secretary of the DHS, cancelled the extension in January, claiming Venezuela “no longer meets the conditions for its designation for TPS” and the continued participation of Venezuelan immigrants in the program would be “contrary to the national interest.” 

Noem also terminated the 2023 redesignation, which affected another 350,000 Venezuelan immigrants whose statuses expired in April. The National TPS Alliance challenged Noem’s decision in February, leading to a lower court decision by U.S. District Judge Edward Chen, who found the administration’s attempt unlawful. The Justice Department brought the issue to the Supreme Court’s emergency docket in May. The Court froze Judge Chen’s ruling in an unsigned order with no provided reasoning, which is not uncommon for emergency appeals. Justice Ketanji Brown Jackson wrote a dissenting opinion. 

The case returned to Chen in September, regarding the 2025 extension. Judge Chen again ruled in favor of the National TPS Alliance, stating that the DHS acted "with unprecedented haste and in an unprecedented manner ... for the preordained purpose of expediting termination of Venezuela's TPS”. A federal court of appeals unanimously denied the Trump Administration its request to block the lower court decision, agreeing with Chen that the DHS made its "decisions first and searched for a valid basis for those decisions second." The Justice Department then turned to SCOTUS again, arguing that its hold in May should also apply to the current case and that Chen’s decision demonstrated “the increasingly familiar and untenable phenomenon of lower courts disregarding this Court’s orders on the emergency docket.” However, Chen claims the Court’s decision in May did not restrict him from making a final judgement on the case as it “did not provide any specific analysis” by not providing a written opinion. 

Nevertheless, SCOTUS accepted the Trump administration's emergency appeal, in which Solicitor General D. John Sauer wrote, “[T]he Secretary determined that even a six-month extension of TPS would harm the United States' 'national security' and 'public safety,' while also straining police stations, city shelters, and aid services in local communities that had reached a breaking point”. He also argued that the Court’s “prior order makes the lower courts’ denial of a stay indefensible.” SCOTUS agreed, ruling in favor of Noem again in another unsigned decision, which stated “[a]lthough the posture of the case has changed, the parties’ legal arguments and relative harms generally have not.” Justices Sotomayor, Kagan, and Jackson indicated their dissent, with Justice Jackson providing a written opinion. 

The DHS celebrated the SCOTUS decision the day of the ruling, through a statement on X,  posting, “Temporary Protected Status was always supposed to be just that: Temporary. Yet, previous administrations abused, exploited, and mangled TPS into a de facto amnesty program.” Venezuelan immigrant communities and legal experts swiftly criticized the decision. The National TPS Alliance’s lawyers had argued that SCOTUS’s initial hold in May had torn thousands of families apart, caused Venezuelans to lose their jobs, become incarcerated, and be “deported to a country that remains extremely unsafe.” They now believe this treatment will be further perpetuated under the Court’s October 3 decision. In a statement, plaintiff and National TPS Alliance member Cecilia Gonzalez expressed her dissatisfaction with the hold, "It is heartbreaking that the justices rubber-stamped this administration's unlawful cancellation of TPS. This decision will upend the lives of hundreds of thousands of law-abiding, hard-working TPS holders like myself."

Beyond the severe consequences facing Venezuelan immigrants, critics of the decision warn of another troubling issue: the growing use of the emergency docket for high-profile cases. The emergency docket is the Supreme Court’s process of handling applications that require immediate action; therefore, the usual lengthy briefing process is limited, and there are no oral arguments. Most cases end with unsigned orders and little to no explanation from the justices. Many believe that this lack of transparency and procedure is dangerous and leaves the power of the Court and the executive unchecked. In her dissenting opinion on Noem v. National TPS Alliance, Justice Jackson wrote, “We once again use our equitable power (but not our opinion-writing capacity) to allow this Administration to disrupt as many lives as possible, as quickly as possible. I view today's decision as yet another grave misuse of our emergency docket.” 

However, in a recent interview with CBS in September, Trump-appointed Justice Barrett defended the Court’s use of the emergency docket. The interviewer questioned Justice Barrett on whether some of SCOTUS’s emergency docket decisions are enabling the executive to enact unlawful policies, without proper checks from the other branches, while lengthy litigation proceeds. Justice Barrett clarified that in emergency cases, the Court is not “enabling” any branch, but rather “making a judgment about which party is likely to succeed.” She continues,  “I think people will disagree with respect to any individual order, whether the Court made the right judgment about the merits or not”, but to “suggest that the Court has some agenda or some motive – that's just wrong.” 

Still, this emergency case is one among many that have allowed President Trump to move forward at a rapid pace with his immigration policies, and it likely will not be the last.