Chief Justice Roberts gets DACA do-over as Supreme Court ponders migrant deportation protections

Chief Justice John G. Roberts Jr. rode to the rescue of illegal immigrant Dreamers six years ago, ruling that President Trump’s attempt to roll back the Obama-era DACA program broke the rules.

Mr. Trump is back at the Supreme Court this week with another case asking the justices to bless his attempt to curtail another program granting migrants protection from deportation — this time something called Temporary Protected Status.

President Biden used TPS to shield more than a million migrants from deportation. Mr. Trump’s team has been pushing to end TPS for more than a dozen countries, making those migrants once again eligible for deportation. 

The justices will hear cases on Wednesday involving attempts to end TPS for Haiti, which covers about 350,000 people, and Syria, which covers about 6,000.

Lower courts ruled that in both cases Homeland Security violated the law, ending protections without giving full consideration to the chaos in those countries.

Mr. Trump wants the justices to let him proceed, arguing that the courts shouldn’t be second-guessing the president on these sorts of decisions, saying they are deeply tied to the president’s foreign policy powers and the law gives the administration wide discretion to decide which countries are covered by TPS.

“Policy arguments cannot trump statutory text,” Solicitor General D. John Sauer told the justices last week in his final brief before argument.

The case is the latest in a string of Trump immigration moves to reach the high court over his two terms in office.

In 2018, the justices delivered a win to the president, with Chief Justice Roberts penning the majority opinion upholding his travel ban on largely Muslim nations. Brushing aside complaints of racism, the chief justice said Congress gave the president wide-ranging powers to exclude categories of migrants at the border.

Two years later, though, the chief justice ruled against the president on his attempt to wind down Deferred Action for Childhood Arrivals, or DACA.

He ruled that Mr. Trump likely did have power to reel in the Obama-era deportation leniency for Dreamers — but said he cut too many corners in how he went about it. Writing for the 5-4 majority, the chief justice said the Dreamers had built up “reliance interests” that deserved more consideration.

Josh Blackman, a professor at South Texas College of Law who has tracked the chief justice over the years, said he expects the case to go more like the travel ban litigation.

“TPS is a fairly narrow program that doesn’t affect very sympathetic plaintiffs like the DACA recipients who came here through no fault of their own,” he said.

He also said the program’s name literally includes the word “temporary” — which should put Mr. Trump on firmer footing.

“It will not be hard for Roberts to see that Biden and others abused TPS, and Trump is actually following the text,” Mr. Blackman said.

But Ahilan Arulanantham, a law professor at the University of California, Los Angeles, who will be arguing in front of the justices on behalf of the Syrian migrants, said he sees the TPS case as closer to the DACA case than the travel ban.

TPS, like DACA, deals with people already in the U.S., while the travel ban was about excluding new arrivals — an area where courts have traditionally given the government more leeway in decision-making.

And the law that was cited as the basis for Mr. Trump’s travel ban granted presidents significant deference, where TPS is more constrained — and actually gives the power to the Homeland Security secretary.

“Also, at a more human level there are a number of TPS holders who are very similarly situated to the undocumented youth in [the DACA case],” he said.

He pointed to the daughter of one of the plaintiffs, who came to the U.S. at 3 and is now about to graduate high school.

Rosemary Jenks, a lawyer who has tracked immigration cases for years, said the law on its face gives the administration wide-ranging powers. But she said the DACA case showed the high court can find reasons to upend the president if it wants to.

“The law Congress duly enacted is very clear that the president has the authority to rescind [TPS],” said Ms. Jenks, at the Immigration Accountability Project. But she added, “There’s no question that if the court wants to find against Trump, they can do it with these vagaries of process.”

The president’s critics say there’s plenty of ammunition for Chief Justice Roberts and his colleagues to rely on.

The administration has reviewed more than a dozen TPS grants and has decided to end each of them.

TPS was created by Congress in 1990 as a way to formalize the government’s ability to delay deportations to nations that suffer natural disasters, war, epidemics or political instability. The theory is that the countries should be allowed to recover without having to accommodate returnees — and the migrants shouldn’t be sent back to rough conditions.

Homeland Security designates countries for up to 18 months, and can renew the designation. Any citizen from a designated country who is in the U.S. on a less-than-permanent basis can apply, though migrants without legal visas make up the vast majority of recipients.

And despite the word “temporary” in its name, some of the oldest grants of TPS date back to the turn of the century, when natural disasters struck Central America.

Syria was first designated in 2012 and has been renewed repeatedly since. And Haiti was first designated after a devastating earthquake in 2010, covering about 50,000. The Biden administration then expanded the designation, covering hundreds of thousands of people who arrived during the migrant surge.

The Trump administration argues that TPS has been used as another loophole for migrants to exploit immigration law.

But to more than a million people, it means stability and a shot at the American dream.

“I’ve been living in the United States for the last 28 years. I have built a family of four U.S. citizen kids and my wife and I have done so many things not only contributing economically to the United States but also in general society,” said Jose Palma, a citizen of El Salvador and coordinator of the National TPS Alliance.

The Supreme Court briefly grappled with TPS last year, issuing two rulings allowing Mr. Trump to proceed with stripping TPS from Venezuela, affecting more than 600,000 migrants.