The Temporary Protected Status program, established under the Immigration Act of 1990, was designed as a humanitarian mechanism to provide temporary refuge for nationals of countries facing extraordinary conditions, such as armed conflict or natural disasters, that prevent safe return.
The statute, codified at 8 U.S.C. § 1254a, grants the Secretary of Homeland Security sole discretion to designate, extend, or terminate TPS for specific countries, with a critical provision: these decisions are explicitly shielded from judicial review. Yet, recent court interventions, such as in National TPS Alliance v. Noem, reveal a troubling trend of judicial overreach that undermines congressional intent, erodes executive authority, and destabilizes the rule of law.
The TPS statute is unambiguous. Section 1254a(b)(5)(A) states that “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 under this subsection.” This language reflects Congress’s deliberate choice to vest the executive branch with unreviewable authority over TPS decisions, recognizing that such determinations involve complex foreign policy and national security considerations best left to the political branches. The executive’s discretion is not absolute — it must comply with statutory criteria — but Congress clearly intended to insulate these decisions from courtroom second-guessing.
Despite this, courts have repeatedly asserted jurisdiction over TPS cases, often at the urging of advocacy groups challenging terminations. In Ramos v. Nielsen, a district court issued a preliminary injunction that blocked the first Trump administration’s attempt to end TPS for Sudan, Haiti, El Salvador, and Nicaragua, citing alleged violations of the Administrative Procedure Act and claims of discriminatory animus. More recently, in National TPS Alliance v. Noem, Judge Edward Chen halted the termination of TPS for Venezuelans, arguing that Secretary Kristi Noem’s decision was “arbitrary and capricious” and potentially motivated by unconstitutional bias. These rulings hinge on creative legal theories that sidestep the statutory bar on judicial review, such as framing TPS terminations as subject to APA scrutiny or invoking constitutional claims to bypass the statute’s clear language.
This judicial activism has profound implications. First, it subverts the separation of powers. By design, TPS decisions are entrusted to the executive, who is accountable to the electorate and equipped to weigh sensitive geopolitical factors. In fact, President Donald Trump campaigned on ending TPS; thus, his administration’s efforts to effectuate that represent a form of accountability. This is part of what America voted for.
Courts, lacking expertise in foreign affairs and insulated from democratic accountability, are ill-suited to override these judgments. When judges substitute their policy preferences for those of the secretary, they encroach on executive prerogative and disrupt the balance of powers enshrined in the Constitution.
Second, these interventions create legal uncertainty and undermine the temporary nature of TPS. The program was never intended as a pathway to permanent residency, as affirmed by the Supreme Court in Sanchez v. Mayorkas. Yet, court injunctions prolong TPS designations beyond their statutory purpose, fostering false expectations among beneficiaries and complicating immigration enforcement. For example, the Noem ruling extended protections for approximately 350,000 Venezuelans, despite the secretary’s determination that continued TPS was contrary to national interests. Such decisions risk transforming TPS into a de facto permanent status, contrary to congressional intent.
Third, judicial overreach invites further litigation, clogging courts and delaying policy implementation. The Ramos case, which lingered for years, exemplifies how advocacy-driven lawsuits can paralyze executive action. Each injunction emboldens new challenges, creating a cycle where courts effectively dictate immigration policy. This burdens the judiciary and erodes public trust in the legal system, as unelected judges appear to prioritize ideological agendas over statutory text.
Critics of TPS terminations often argue that judicial review is necessary to prevent arbitrary or discriminatory decisions. However, the TPS statute already provides checks: the secretary must consult with other agencies, consider country conditions, and justify decisions in the Federal Register. Moreover, allegations of animus, as in Noem, are speculative and often rely on political rhetoric rather than evidence of unlawful intent. Allowing courts to investigate the motives behind TPS decisions opens a Pandora’s box, inviting judges to act as super-administrators over executive actions.
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The solution lies in judicial restraint. Courts must respect the TPS statute’s clear prohibition on review, limiting their role to ensuring procedural compliance without delving into substantive policy disputes. Congress could further clarify the statute to close loopholes exploited by litigants, such as explicitly exempting TPS decisions from APA challenges. Until then, the executive must vigorously defend its authority, appealing overreaching rulings to higher courts, including the Supreme Court, which has shown a willingness to enforce statutory text over judicial activism.
In conclusion, the courts’ insistence on reviewing TPS decisions defies the law, disrupts governance, and undermines the program’s supposedly temporary nature. This is a clarion call to demand judicial fidelity to the TPS statute and support executive efforts to restore order to immigration policy. The integrity of our constitutional system depends on it.
Ken Cuccinelli is a Senior Fellow for Homeland Security and Immigration for the Center for Renewing America. He most recently served as acting Deputy Secretary of Homeland Security and acting Director of U.S. Citizenship and Immigration Services during the first Trump administration.
This article was originally published at www.washingtonexaminer.com
