Court Rules Trump Administration Can End TPS Programs
FAIR Take | September 2020
In a 2-1 decision, the U.S. 9th Circuit Court of Appeals ruled that the Trump administration can legally end Temporary Protected Status (TPS) protection for hundreds of thousands of people. The ruling lifted a temporary ban previously placed by a court that prevented the administration from ending TPS designation for aliens from Sudan, Nicaragua, Haiti, and El Salvador. The case is Ramos v. Wolf, No. 18-16981 (9th Cir. 2020).
The plaintiffs in the case are TPS beneficiaries from El Salvador who argued that the Trump administration acted with “racial animus” against TPS beneficiaries because they are non-European, and also charged that the administration acted without following the Administrative Procedures Act (APA). This is notable because many Trump administration defeats in the courts occurred because judges found the administration did not follow the APA. Failing to follow the APA is what led to the stunning defeat in Department of Homeland Security v. Regents of the University of California, the decision preventing the administration from ending Deferred Action for Childhood Arrivals (DACA).
The 9th Circuit found that first, the APA claim is unreviewable, writing that: “the panel concluded that the APA claim was not reviewable, explaining that the claim does not challenge any agency procedure or regulation, but rather essentially raises a substantive challenge to the Secretary’s underlying analysis.” The 9th Circuit also threw cold water on the district court’s ruling that President Trump made the decision to end TPS out of a racist desire to remove non-European aliens from the United States, writing that: “the district court cited no evidence linking the President’s animus to the TPS terminations—such as evidence that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.”
This is a clear victory for the Trump administration, who tried to end some TPS country designations in 2017 and 2018. TPS is a humanitarian program created by Congress in 1990 that is essentially administered by the executive branch. Unfortunately, the “temporary” aspect of TPS is anything but – Presidents in both parties routinely rubber-stamp the continuation of TPS status, regardless of whether or not conditions have improved in the countries.
Democrats in the House of Representatives opposed President Trump’s attempts to end TPS designation by passing the American Dream and Promise Act, which would amnesty TPS recipients and make it harder for future presidents to end TPS designation for countries. The Senate ignored this bill. This rare victory in the 9th Circuit ensures that the president’s power to administer TPS remains intact.