Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—Justices hear oral argument on terminations of TPS for Syria and Haiti, (May 1, 2026)

By Karen Servidea, J.D.

The Court appeared divided on whether courts have authority to review TPS terminations, as well as the merits of TPS beneficiaries’ claims.

At oral argument on April 29, the U.S. Supreme Court pressed the federal government and the beneficiaries of Syria’s and Haiti’s temporary protected status (TPS) designations who are challenging the Department of Homeland Security’s (DHS) terminations of those designations on the availability of judicial review for such claims, as well as the claims’ merits. The TPS beneficiaries are challenging the terminations on the ground that they were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law because, for example, DHS allegedly failed to consult with other appropriate agencies, as required by statute. The TPS beneficiaries in the Haiti case also challenge that country’s TPS termination on equal protection grounds (Mullin v. Doe, No. 25-1083 (U.S. argued Apr. 29, 2026); Trump v. Miot, No. 25-1084 (U.S. argued Apr. 29, 2026)).

The government is asking the Court to reverse lower court decisions that postponed the terminations. A decision in favor of the government would allow the terminations to go into effect immediately. Estimates from 2025 suggest that roughly 6,132 and 352,959 individuals, respectively, have TPS under Syria’s and Haiti’s designations. Individuals with TPS are protected from removal from the United States and receive authorization to work in the country.

Legal challenges. In Mullin v. Doe, seven Syrian nationals with TPS or pending TPS applications challenge the termination of Syria’s TPS designation on Administrative Procedure Act (APA) grounds. They allege that the Secretary failed to consult with other appropriate agencies before ending the designation and improperly considered national interest as justification for the termination. They also claim that the decision was not based on an objective review of country conditions, but rather was a predetermined, political decision.

In Trump v. Miot, individuals holding TPS status under Haiti’s designation challenge the termination of such designation on APA and equal protection grounds. Their APA claim asserts that the termination was a preordained outcome justified by pretextual reasons and that the decision was made without the requisite consultation with appropriate agencies. In their equal protection claim, the TPS holders allege that the termination was improperly motivated by animus and discriminatory intent based on race and ethnicity.

Arguments. U.S. Solicitor General D. John Sauer opened with the government’s contention that the TPS statute (8 U.S.C. § 1254a) bars the TPS beneficiaries’ non-constitutional claims. The solicitor general then argued that, even if they are reviewable, the TPS beneficiaries’ claims are meritless.

After the Justices finished questioning the solicitor general, Ahilan Arulanantham, professor at the UCLA School of Law, began his argument on behalf of the Syrian TPS beneficiaries by addressing the reviewability issue. Arulanantham posited that the statute bars review of country condition assessments but preserves review to ensure compliance with other requirements, such as consultation with other agencies and making a decision based on country conditions. “On the merits,” Arulanantham said, “this is an easy case.” He noted that one basis for Syria’s TPS designation was an armed conflict but, he said, DHS never consulted the State Department about armed conflict. He additionally argued that it was impermissible for the Secretary to terminate Syria’s TPS designation based on national interest.

Bryan Cave partner Geoffrey Pipoly argued for the Haitian TPS beneficiaries. Pipoly asserted that the termination of Haiti’s TPS “was not the result of the mandatory review process but was instead a preordained result driven by the President’s resolve to end TPS for Haiti, no matter what.” He argued that the reasons given for the termination were pretextual. “The true reason for the termination,” he continued, “is the President’s racial animus towards non-white immigrants and bare dislike of Haitians, in particular.” Pipoly then referred to statements by President Trump that allegedly disparaged Haitian TPS holders.

Jurisdiction. The TPS statute provides that “[t]here is no judicial review of any determination... with respect to the designation, or termination or extension of a designation, of a foreign state [for temporary protected status].” Stating that “[t]hat provision means what it says,” the solicitor general urged that the bar precludes “judicial review of both the Secretary’s ultimate decision whether to designate, extend, or terminate and of each antecedent step along the way to that determination.”

Justices Ketanji Brown Jackson and Sonia Sotomayor pressed the government on its view of the judicial-review bar. Jackson asked: “Is it reviewable for a person to allege that the Secretary made this determination without following the statutory steps?” The solicitor general replied, “Certainly not.” “So what was the point of Congress putting this statute into being and having requirements for the Secretary if there was no ability for anyone to challenge the Secretary’s compliance?” asked Jackson.

Justice Elena Kagan also seemed inclined to reject the government’s view that the judicial-review bar precludes all of the TPS beneficiaries’ non-constitutional claims. She characterized the judicial-review bar as broad and said that, if there is a completely arbitrary understanding of what the country conditions are, there is nothing a court can do about that. “But that’s a different thing than to say that all the things that the statute says that the Secretary is supposed to do in order to determine country conditions are themselves unreviewable.” Kagan also suggested, however, that she views the statute as precluding claims that the Secretary’s determination was arbitrary and capricious.

In a colloquy with Arulanantham, the Syrian TPS holders’ attorney, Justice Clarence Thomas said that the judicial-review bar “seems pretty broad.” Thomas then drew an analogy to appellate courts’ authority to review judgments and posited that “[n]ormally... we would think that the subsidiary considerations that lead to a judgment would also be reviewable or non-reviewable depending on jurisdiction.” Arulanantham disagreed that there is any such general principle of administrative law.

Justice Samuel Alito asked Arulanantham whether in order for him to win the case it was necessary for the Court to find that the word “determination” in the statute is a term of art. After the attorney responded in the negative, Alito noted his disagreement: “If we apply [the] ordinary meaning of that term here,... I really don’t understand how you can prevail.”

An exchange between Justice Neil Gorsuch and counsel for the Haitian TPS holders suggested that Gorsuch also might lean toward the government on the judicial-review issue. In response to a question by Gorsuch, Pipoly agreed that the Secretary’s substantive determination that country conditions no longer meet the statutory criteria is unreviewable. “And... that takes effect once it’s published in the Federal Register plus 60 days or something like that, under [the statute], right?” asked Gorsuch. “That’s correct,” said Pipoly. Referring to the lower court orders that postponed the terminations in these cases, Gorsuch then queried: “But how can it not be judicial review of the determination if you’re postponing the determination.?”

Interagency consultation. The attorneys were also questioned about the interagency consultation requirement. Justice Amy Coney Barrett asked the solicitor general to assume that the government lost its argument that the process that the Secretary followed is not subject to judicial review and to articulate what standards a court would apply when reviewing the sufficiency of consultation. The solicitor general responded by referring to the dictionary definition of “consult” and argued that seeking input is consultation. He then referenced email exchanges between a DHS employee and a State Department employee upon which the government relies to establish that consultation occurred with respect to Syria and Haiti.

Kagan then asked the solicitor general what would happen if the State Department never responded to the email from the DHS employee. “Would that also be appropriate consultation?” The solicitor general responded in the affirmative, asserting that the Secretary “can’t force” the State Department to respond. Kagan pushed back, positing that “the plain meaning of the word ‘consultation’ seems to me like you consult with somebody on a topic,” and “[t]hat means you ask a question,” and “[t]hey give an answer that’s on the same topic.”

Equal protection. The parties dispute the standard of review that applies to the TPS beneficiaries’ equal protection claim in the Haiti case, as well as the outcome under each standard. The government argues that rational basis review, which asks whether the challenged policy was plausibly related to the government’s stated objective, governs. The TPS beneficiaries contend that a heightened standard of review applies, requiring them to show only that a discriminatory purpose was a motivating factor in the government’s action.

In a potentially positive sign for the TPS beneficiaries, Chief Justice John Roberts questioned the solicitor general on the government’s reliance on a 2018 Supreme Court opinion in Trump v. Hawaii, 525 U.S. 667 (2018), which Roberts wrote, as support for the government’s argument that rational-basis review applies. Roberts said that the government’s argument “is a significant expansion” of that case, which involved the President and entry restrictions, as opposed to the Secretary and aliens that are already present in the country.

In an exchange with Pipoly, the Haitian TPS beneficiaries’ attorney, Alito referred to the fact that TPS had been terminated for “quite a list of countries.” He asked Pipoly whether “non-white” was the distinguishing characteristic of all of the countries. Pipoly responded that that was what the district court held. Alito commented that “you have a really broad definition of who’s white and who’s not white” and that “I don’t like dividing the people of the world into these groups.”

Sotomayor seemed inclined to hold that the TPS beneficiaries had met the standard to establish their equal protection claim. In an exchange with the solicitor general, Sotomayor quoted statements by Trump that Haiti is a “‘filthy, dirty, and disgusting S-hole country’” and referring to illegal immigrants as “poisoning the blood of America.” “I don’t see how that one statement is not a prime example of the [heightened standard of review] at work and showing that a discriminatory purpose may have played a part in this decision,” she added. In reply, the solicitor general asserted that the statements do not mention race or relate to race in any way.

Jackson asked the solicitor general whether the position of the United States was that we have to have “an actual racial epithet” and “aren’t allowed to look at all the contexts.” She described the contexts as including “the President’s insistence that immigrants from certain countries, largely, if not almost exclusively, countries with... black African immigrants, are not allowed... at the same time that it is the policy of the United States to encourage and welcome immigrants from places like Norway and Denmark and white... South Africans.” The solicitor general argued that the statements were made in different contexts that are remote in time.

Attorneys: Ahilan Arulanantham, UCLA School of Law, for Dahlia Doe, et al. Geoffrey Pipoly (Bryan Cave Leighton Paisner) for Fritz Emmanual Lesly Miot, et al. U.S. Solicitor General, Department of Justice, for the United States.

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