Congress must fix our temporary protected status problem

A governing document that a trustee can override whenever he disagrees with it isn’t a trust — it’s a suggestion.

That is close to what happened Friday, when U.S. District Judge Allison Burroughs issued her second stay since March blocking the Trump administration from ending Temporary Protected Status for more than 1,000 Somali nationals, six weeks after the Supreme Court had told district courts in Mullin v. Doe they have no authority to second-guess such a termination of status on anything but constitutional grounds.

Homeland Security’s general counsel called the order “defiance, obstruction, and delay.” Rep. Andy Ogles (R-Tenn.) called it grounds for impeachment. Both are pointing at something real. Neither has named the actual defect: The cost of ignoring a governing instrument is zero because Congress hasn’t made it real.

A stay isn’t a final ruling. It is a pause button that a judge keeps pressing until someone with more authority makes her stop. Mullin was supposed to be that someone, though the case itself involved Haiti and Syria. In a 6-3 ruling in June, the Supreme Court held that Congress barred judicial review of temporary protected status terminations on statutory grounds, full stop. The court declined, however, to say that plaintiffs could never raise constitutional claims, since that would contradict due process doctrine elsewhere in federal law.

The Somali plaintiffs seized that opening. Days after the First Circuit applied Mullin to reverse similar stays for Ethiopia and South Sudan, they dropped the statutory theory and argued equal protection and due process instead. Burroughs found that persuasive enough to........

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