President Trump, on March 12, 2018, declined to extend Temporary Protected Status (TPS) for El Salvador, Haiti, Sudan and Nicaragua. He declared, in effect, that it is safe for those with the status to go home. TPS is found in the Immigration and Nationality Act § 244, which discusses the designation of worthy countries here. (Take a quick look and come on back). On October 3, 2018, after the filing of a lawsuit, a federal district court temporarily halted the termination of TPS for these countries.
As is evident from the statute, it is not a matter of willy-nilly choosing and un-choosing countries but rather requires making reasoned findings about conditions in the country. The lawsuit challenging the termination of TPS is based, in part, on the termination process was conducted in an arbitrary and capricious manner in violation of the Administrative Procedures Act, which allows for setting aside the actions of a federal agency if it is arbitrary or capricious. See 5 U.S.C. § 706(2)(A).
When the government announced termination of TPS, implicit was the assumption that the government actually made a learned analysis under INA § 244 that TPS was ripe for terminating.
On September 5, 2017, the then acting secretary of the Department of Homeland Security, Ms. Elaine C. Duke, announced the rescission of Deferred Action for Childhood Arrivals DACA), arguing, in part, that DACA was an “unconstitutional exercise of authority by the Executive Branch.” Lawsuits here and here have stopped the rescission of DACA and DACA recipients are able to renew their DACA status.
On January 19, 2019, in a White House speech, President Trump offered to reinstate TPS and extend DACA if he would get funding for a wall. Assuming that what the President states about his policies is probative of the bases for his policies, President Trump’s announcement undercuts his legal positions in both of these cases.
If careful analysis of the conditions in TPS countries led to the conclusion that TPS was no longer warranted, how can the President simply reinstate it? How was it not arbitrarily and capriciously terminated if it can now, as a bargaining chip in a separate argument, be reinstated?
If DACA is an illegal exercise of power by the executive branch, how can the President simply reinstate it? If it is too illegal to exist, how is it not too illegal to continue?
The only argument is that what the President says is not what the President means. Such is the legal position his lawyers will have to make in court. And people who negotiate with him must also realize that what he offers is not what he means. This, of course, is not news to anyone. Ask Mitch (if you can find him). Posted January 20, 2019.