The Roberts Court is helping Donald Trump deport refugees based on racial animus. The Court is the executioner’s alibi.
That is the practical effect of Justice Samuel Alito’s six-justice majority opinion on Thursday in Mullin v. Doe. The Court did not merely defer to the executive on a close call. It read the Temporary Protected Status statute’s bar on judicial review of “any determination” by the Secretary of Homeland Security — 8 U.S.C. § 1254a(b)(5)(A) — to insulate the Secretary’s termination of TPS for roughly 360,000 Haitians and Syrians from any federal court review of any kind. The bar applies whether the termination complied with the statute’s own procedural requirements. The bar applies whether the termination was the product of the racial animus the Equal Protection Clause forbids.
The Wall Street Journal’s editorial board defends the majority as having “merely ruled that judges can’t usurp power that Congress delegated to the President.” That framing inverts the actual ruling. Congress did not delegate to the President the unreviewable power to terminate TPS for racial reasons. Congress wrote a statute that, against the established background of the Administrative Procedure Act and three decades of immigration jurisprudence, allowed federal courts to enforce the statute’s procedural requirements. The Alito majority is the body creating a new immunity, not the body enforcing an old one. The Journal’s free-market editorial page is functioning as the doctrinal shield.
The Journal dismisses the lower-court interventions as a response to “procedural quibbles” and characterizes the legal challenges as an “onslaught of lawsuits.” These are the words the editorial board uses to describe the statutory requirements Congress wrote into the law and the federal court actions filed by citizens exercising the Administrative Procedure Act review the Journal claims to revere. “Procedural quibbles” is what the editorial board calls the obligation to consult the State Department. “Onslaught of lawsuits” is what it calls the act of asking a federal court to enforce a statute. The Journal’s preferred vocabulary is the giveaway. When the procedural obligation constrains the executive’s preferred outcome, the obligation is a quibble. When the courts enforce the obligation, the courts are usurping power.
The steel-man of the majority’s reading is that the statute’s words are broad. Section 244(b) of the INA — the Temporary Protected Status provision, catalogued for the bar as 8 U.S.C. § 1254a — bars judicial review of “any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state.” The majority reads “any determination” to capture not just the Secretary’s ultimate decision but the entire process leading to it. A Secretary who failed to consult the State Department, who terminated TPS without the statutorily required review of country conditions, who relied on factors the statute does not authorize, has still made a “determination” unreviewable by any federal court.
That reading is the Court’s own, not the statute’s. The Court has read comparable preclusion clauses narrowly for decades. The presumption of reviewability under the APA is that Congress does not foreclose judicial review unless it does so in clear and convincing terms. The Court reaffirmed that presumption in Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), striking down the first Trump administration’s termination of DACA on the ground that the rescission was arbitrary and capricious. The Regents Court did not pause to ask whether the rescission was itself reviewable. The Court treated APA review as available, and the Secretary’s compliance with statutory procedure as the question on the merits.
Mullin v. Doe now reads a materially identical statute — the TPS provision contains the same bar on review of “any determination” — to bar the same kind of review Regents treated as available. The Alito majority has chosen a reading of the TPS statute that produces broad executive immunity where the DACA reading produced executive accountability. The two rulings are not reconcilable as a matter of textual method. They reconcile only as a matter of which executive action the Court wishes to constrain and which it wishes to leave alone. The conservative legal movement does not treat jurisdiction-stripping provisions as absolute shields for executive action across the board; it deploys them selectively to immunize favored outcomes. When the executive acts in a direction the movement opposes, the Court reads jurisdictional grants expansively to reach the merits. Here, facing the termination of TPS for 360,000 people, the Court slams the jurisdictional door shut.
The majority then turns to the equal protection claim. Justice Elena Kagan’s dissent, joined by Justices Sotomayor and Jackson, documents the record: derogatory statements by the President specifically targeting Haitians and the TPS program. Under Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), a plaintiff must show that discrimination was a motivating factor — not the exclusive reason. Justice Alito acknowledges the statements are “reprehensible” and adds that “poverty and deprivation are no reflection on character.” The Court then concludes that the statements are nonetheless “insufficient to show” that the termination was based on race. The reprehensibility finding does the work of acknowledging the evidence; the “insufficient to show” finding does the work of suppressing its legal consequence.
The dissent’s argument, in Kagan’s words, is that “the evidence is there, plain to see, in the President’s statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat.” The Journal translates the dissent as claiming the statements are “irrefutable proof of racial bias.” That is not the dissent’s argument. The dissent’s argument is that the majority’s standard — requiring plaintiffs to prove race-based decision-making through a chain of inferences the Court now refuses to credit — is a standard no Equal Protection plaintiff can meet. By demanding that the plaintiffs isolate race from the President’s own stated economic rationales — rationales inextricably bound to his documented racial animus in the same breath — the majority elevates the burden of proof to an impossible standard. This is a profound departure from ordinary equal protection doctrine. The Court does not require plaintiffs to prove the exclusive reason; it requires proof of a motivating factor. The Alito opinion collapses that standard into a demand for racial exclusivity the doctrine never imposed.
The pattern is not that the Justices apply the same standard across administrations. The pattern is that the Court applies an increasingly permissive standard to Republican executive action on immigration while maintaining the APA reviewability that constrained Republican executive action on immigration in 2020. Trump v. Hawaii, 585 U.S. 667 (2018), upheld the travel ban against an Establishment Clause challenge on the basis of campaign statements, applying rational-basis review to facially neutral executive action. Mullin v. Doe now applies the same deferential posture to TPS termination, against a record that includes the President’s own statements about the affected populations. The pattern is not neutral text-exegesis. It is selective deference.
The Alito majority includes, in the same opinion, a paragraph about the Battle of Savannah and the contributions of Haitian soldiers to American independence. The paragraph is a telling detail. The Court is not reluctant about the historical record it is willing to recite in defense of the Haitian plaintiffs’ character. It is reluctant about the historical record it is willing to credit as evidence of the termination’s discriminatory animus. The institutional register has chosen what to remember and what to forget. The choice is the audit.
The Journal’s masthead describes the editorial board as the voice of “free markets and free people,” tracing its principles to “the watershed year of 1776” and Thomas Jefferson’s Declaration of Independence. The editorial board stands, by its own account, for “individual autonomy against dictators, bullies and even the tempers of momentary majorities.” The 1776 rhetoric and the 1990 statute cannot both be the foundation. The Journal invokes the Declaration of Independence to license the editorial’s defense of an executive action that the Equal Protection Clause of the Fourteenth Amendment forbids. The editorial board claims Jefferson against the Reconstruction Amendments. It claims 1776 against 1868. The Journal’s grand self-mythology is the rhetorical version of the Alito majority’s doctrinal move: an appeal to one foundational text used to silence another.
This is not an isolated instance of statutory text-trumping. It is a regime-level doctrinal lock. The constitutional baseline is that the executive branch cannot deport people based on racial animus. The doctrinal lock the Court has built is the mechanism that makes that constitutional answer un-litigable. By combining a sweeping reading of a jurisdiction-stripping statute with a willful misapplication of the Arlington Heights intent standard, the Court ensures that racially motivated executive action in the immigration context can never reach a merits hearing. To call this neutral text-exegesis is to mistake the construction of an executive impunity regime for fidelity to statutory text. Reading a jurisdiction-stripping statute to immunize racial animus, while simultaneously lowering the evidentiary bar to defeat an equal protection claim, is not neutral. It is the active construction of an executive impunity regime.
The doctrinal shield is the Alito opinion. The Journal’s editorial page is its public defender. The refugees are not just losing their protected status. They are losing the courthouse itself. That courthouse must be reclaimed.