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Immigration

The Supreme Court's Badly Flawed Ruling in the Haiti TPS Case

Extensive evidence indicates that the decision to end Temporary Protected Status for Haitian migrants was motivated by unconstitutional racial and ethnic discrimination. The Court's ruling on statutory issues also has flaws.

Ilya Somin | 6.25.2026 8:42 PM

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In my last post, I explained why today's Supreme Court Second Amendment ruling was right. In this one, I explain why its decision in Mullin v. Doe, the Haitian Temporary Protected Status case, is badly wrong. This case involves a challenge to the Trump Administration's decision to terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitian and Syrian migrants in the US. TPS status protects from deportation migrants who entered the US from countries where conditions such as war, violence, or natural disaster make it dangerous for them to return home.

The Haitian and Syrian plaintiffs argued (and lower courts agreed) that the Trump administration violated various procedural requirements in terminating their status. The Haitians also contended (correctly, as well shall see) that the withdrawal of TPS status in their case was motivated by racial and ethnic bigotry, and thus a violation of the Constitution for that reason.

The constitutional question here is somewhat similar to that in Trump v. Hawaii (2018), where the Court upheld Trump's first-term travel ban barring residents of Muslim-majority nations, despite extensive evidence Trump was motivated by anti-Muslim prejudice and discrimination. But, in that case, the Court ruled that a much lower standard of review applied than would normally be the case, because the context was a policy excluding non-citizens from entering the United States (in previous writings, I have explained why the Court was wrong to apply such a low standard; see here and here).

In this instance, the majority did not address the issue of whether a lower standard of review applies to withdrawal of legal status from migrants already in the US. Instead, Justice Alito's majority opinion concludes the plaintiffs should lose even under normal standards applicable to facially neutral laws and regulations that may have been enacted for unconstitutional discriminatory reasons. This conclusion is badly wrong.

Evidence of anti-Haitian bigotry motivating Trump and other officials involved in the decision is overwhelming. Justice Elena Kagan summarizes some of it in her dissent:

[T]he Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print….

So here are some of those statements. Haitians are "eating the dogs . . . . They're eating the cats. They're eating—they're eating the pets of the people that........

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