In late March, Federal District Judge Edward Chen of the Northern District of California (an Obama appointee) enjoined the Trump administration from ending Temporary Protected Status (TPS) for hundreds of thousands of Venezuelans already in the United States under the program. In May, the Supreme Court stayed Judge Chen’s order. As our editorial explained the backdrop:

President Biden granted TPS to about 350,000 Venezuelans. The first TPS grant, in 2021, was originally set to expire on September 10, 2025. The Trump administration has not disturbed that termination date. The second TPS grant, in 2023, was originally set to expire on April 2, 2025. That termination was not disturbed, either. Nevertheless, in the final days of the Biden administration, Alejandro Mayorkas, Biden’s secretary of homeland security, attempted to extend both TPS grants until October 2026, even though the Biden administration would not be in office when the original grants expired. When the new administration took office, Trump Homeland Security Secretary Kristi Noem nullified this extension. . . .

The governing statute, Section 1254a(b)(5)(A) of the immigration laws (Title 8, U.S. Code), unambiguously provides: “There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state.” . . . Congress has vested the president and his administration with full authority to determine whether conditions in a foreign country warrant temporary asylum for its fleeing nationals. It is for the executive, not the courts, to weigh such matters as the danger to national security posed by an influx of insufficiently vetted nationals of a country that is hostile to the United States, is aligned with other anti-American regimes, and is plagued by gang violence.

Judge Chen theorized that, despite this congressional mandate, the Administrative Procedure Act endowed him not merely to second-guess the executive branch — on a quintessentially political matter of foreign policy in which the non-political judiciary branch lacks authority and institutional competence — but also to decree that his unaccountable assessment of the national interest was binding nationwide. In a similar act of judicial imperiousness, the Ninth Circuit directed that Chen’s injunction would remain in effect while the case was on appeal.

This afternoon, in National TPS Alliance v. Noem, the Ninth Circuit reinstated Judge Chen’s decision, almost certainly setting up yet another showdown at the Supreme Court. The decision was by judge Kim McLane Wardlaw, a Clinton appointee, and was joined by two Biden appointees (Salvador Mendoza Jr., and Anthony D. Johnstone). As to the availability of judicial review, the court claimed that a suit under the APA “challenging the Secretary’s statutory authority to vacate a prior TPS extension . . . falls outside the scope of this jurisdiction-stripping provision.” As the panel explained:

The extent of statutory authority granted to the Secretary is a first order question that is not a “determination . . . with respect to the designation, or termination or extension” of a country for TPS. Nothing here indicates that Congress’s language restricting review of the Secretary’s “determination[s]” of whether to grant TPS in a particular situation also extends to her conclusion as to the extent of her power under the TPS statute. . . .

Congress’s decision to explicitly carve out from judicial review the Secretary’s decisions related to “determination[s] . . . with respect to the designation, or termination or extension” of a country for TPS strongly suggests that we may review the Secretary’s interpretations of her authority under the TPS statute. [Quotation omitted.]

In the Ninth Circuit’s view, “agencies lack the authority to undo their actions where, as here, Congress has spoken and said otherwise.” The court hung that conclusion on language in the statute:

Congress has displaced any inherent revocation authority by explicitly providing the procedure by which a TPS designation is terminated. The Secretary’s assertion of such a power is, as the district court noted, “at odds with the structure of the TPS statute.” The TPS statute specifically addresses the time frame within which a TPS designation may be terminated. Section 1254a(b)(3)(B) provides that a termination “shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension.” It expressly provides that the termination of a TPS designation can be no earlier than the expiration of the most recent extension. The statute does not permit the Secretary to terminate a designation “midstream,” but that is exactly what the Secretary purports to do here. And while the statute expressly sets forth in detail procedures for “designation,” “extension,” and “termination,” it nowhere mentions a process for “vacatur,” which, in this case, has the practical effect of a “termination” of a TPS designation. Thus, if the Secretary wished to end TPS status for Venezuelans, she is statutorily required to follow the procedures for termination that Congress enacted. . . .

Holding otherwise, and allowing rescission or vacatur of the TPS designation here, would empower the agency to indirectly take three separate actions that are prohibited by statute: designating countries for TPS for a time period under six months, 8 U.S.C. § 1254a(b)(2)(B), (b)(3)(C), terminating TPS before the expiration of the last extension, § 1254a(b)(3)(B), and terminating TPS with less than sixty days’ notice, id. Such a dodge of statutory language is impermissible.

This produces the absurd result that Mayorkas is effectively able to continue running the TPS program for Venezuelans for a year and a half after leaving office, and the executive branch in the interim is forbidden to even consider whether conditions in the country have changed. Sharpening the issue, the Ninth Circuit also ruled that, because this is an APA case and not governed by the rule of Trump v. CASA (which dealt only with equitable injunctions, not injunctions under the powers granted to courts by Congress in the APA), its ruling will apply nationwide.

Off we go to One First Street.