Thread by @ReichlinMelnick

Today the Supreme Court hears a case that will decide the fate of over 350,000 people currently living legally in the United States — and impact thousands more who are still in limbo.

So what is Temporary Protected Status and what is the case about? NEW 🧵 on the issue.

https://twitter.com/NinaTotenberg/status/2049483087432823192

Temporary Protected Status was created to deal with the fact that sometimes, due to an outbreak of war, political crisis, or natural disaster, deportation becomes inhumane.

Without a law to address this, presidents responded on an ad hoc basis using inherent executive authority.

Before TPS, Presidents used a thing called "extended voluntary departure" to address these crisis. For example:

- Ford gave EVD to Lebanese in 1976 due to civil war
- Carter gave EVD to Ugandans in 1978 due to civil war
- Reagan gave EVD to Poles in 1981 due to Soviet crackdowns

But Extended Voluntary Departure had a big problem; the process for granting or extending it was completely opaque and political. Administrations would grant, extend, or terminate it for reasons known only to them.

To address this, Congress decided to create TPS.

Temporary Protected Status, created in 1990, established a new, standardized process for determining when a sudden crisis meant it was no longer safe or humane to deport people to their home countries.

Unlike EVD, the goal was a system guided by objective facts, not politics.

TPS can ONLY be granted when the DHS Secretary* determines there is a natural disaster, armed conflict, or "extraordinary and temporary conditions" preventing safe return.

*the law says Attorney General but ignore that, the 2003 Homeland Security Act gave it to the DHS Secretary

Congress also intended that TPS termination would be insulated from politics and be based on objective facts.

TPS can ONLY be terminated once DHS conducts a factual review of "conditions in the foreign state" and finds that the situation has improved. If no, it MUST be extended.

For 35 years, this is how TPS operated. Once it was granted, the government would conduct an investigation in the months before TPS was set to expire, and would decide if conditions had improved such that it was safe to return.

If no, it was extended. If yes, it was terminated.

Enter Trump 2.0. Since taking office, 13 countries have come up for termination of their TPS. But unlike every administration in the past, there has been no factual investigation of whether conditions have improved.

Here is the full extent of the "consultation" DHS did on Haiti.

The Trump administration has been clear that they don't like TPS and the fact that people granted the status get to live legally and work legally in the United States. So they have terminated EVERY SINGLE designation to come up for an extension so far, often on laughable grounds.

As a result, people have sued. And the government's response in each case has been the same: this lawsuit is barred because Congress in 1990 *also* said that no court can review any "determination ... with respect to the designation, or termination" of TPS.

While on its face, this may seem to be an insurmountable obstacle, plaintiffs have sued on a theory that they are not challenging the determination itself, but rather on the process to reach it; the lack of factual review and the biased, pre-textual decision-making.

Today the Supreme Court will be debating three questions;

- Whether the case can be heard in the first place
- Whether the failure to follow the procedures set out in the law make the termination unlawful
- Whether a court correctly held that the decision was motivated by racism

At stake in these direct cases are 350,000 Haitians and a few thousand Syrian nationals who are currently living and working lawfully with TPS.

But there are around 900,000 others whose TPS has either already been terminated or is at risk of being terminated by Trump.

6 out of 7 Haitians who have TPS got it under Biden, following Secretary Mayorkas' decision to re-designate TPS after the Haitian president was assassinated in 2021 and the country descended into chaos.

1 in 7 got TPS after the 2010 earthquake which killed over 100,000 people.