A feature of Donald Trump’s presidential tenure has been sloppy discrimination hindering his preferred policies — at least temporarily. A more sophisticatedly racist approach would make life easier for Trump administration lawyers in court.
The latest example was memorialized in an 83-page ruling Monday night from U.S. District Judge Ana Reyes, a Biden appointee who blocked Homeland Security Secretary Kristi Noem’s bid to end relief for Haitians under the Temporary Protected Status program, or TPS.
The Washington judge cited how Trump has “repeatedly invoked racist tropes of national purity,” as she found that the plaintiffs who sued the administration are likely to win their claim that “anti-black and anti-Haitian animus motivated Secretary Noem’s decision to terminate Haiti’s TPS designation.”
Reyes put a social media post of Noem’s on the first page of her opinion, in which the secretary wrote:
I am recommending a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies.
Our forefathers built this nation on blood, sweat, and the unyielding love of freedom — not for foreign invaders to slaughter our heroes, suck dry our hard-earned tax dollars, or snatch the benefits owed to AMERICANS.
WE DON’T WANT THEM. NOT ONE.
The judge observed that the five plaintiffs, who are all Haitian TPS holders, aren’t “killers, leeches, or entitlement junkies.” They are, she wrote, a neuroscientist researching Alzheimer’s disease; a software engineer at a national bank; a laboratory assistant in a toxicology department; a college economics major; and a full-time registered nurse.
Reyes’ ruling in their favor wasn’t a final determination about the legality of Noem’s move to revoke their protections; it was about whether to block her move pending the outcome of the litigation. To make that preliminary decision, the judge had to evaluate the plaintiffs’ likelihood of success and whether they’d be irreparably harmed without immediate relief, as well as the public interest. She found the plaintiffs won each factor.
Reyes found it “substantially likely” that Noem “preordained her termination decision and did so because of hostility to nonwhite immigrants.” The judge noted, among other things, that the secretary ignored the legal requirement to consult with appropriate agencies and that she also ignored the billions of dollars that Haitian TPS holders contribute to the economy.
While conceding that the homeland security secretary does have some discretion, the judge wrote that Noem lacks the “unbounded discretion” that the government claimed. “To the contrary, Congress passed the TPS statute to standardize the then ad hoc temporary protection system — to replace executive whim with statutory predictability,” Reyes wrote.
When it came to the irreparable harm factor, the judge pointed to the State Department’s own warning about the dangers of traveling to Haiti. The government argued that the plaintiffs wouldn’t necessarily be harmed because they might not be removed. But Reyes quoted back Noem’s brash post in rejecting that argument, writing that the government “fails to take Secretary Noem at her word: ‘WE DON’T WANT THEM. NOT ONE.’”
Still, Reyes’ ruling might not even be the last word preliminarily. The administration signaled its intention to appeal her decision to a high court that’s more into the whole “unbounded discretion” thing. In a statement suggesting an inevitability to its judicial salvation on appeal, as well as annoyance at having to press its case that far, a DHS spokesperson said after the ruling, “Supreme Court, here we come.”
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