An eloquent and bracing federal court opinion issued this week began this way:
On December 2, 1783, then-Commander-in-Chief George Washington penned: “America is open to receive not only the Opulent & respected Stranger, but the oppressed & persecuted of all Nations & Religions.” More than two centuries later, Congress reaffirmed President Washington’s vision by establishing the Temporary Protected Status (TPS) program. It provides humanitarian relief to foreign nationals in the United States who come from disaster-stricken countries. It also brings in substantial revenue, with TPS holders generating $5.2 billion in taxes annually. Department of Homeland Security (DHS) Secretary Kristi Noem has a different take.
What followed from U.S. District Court Judge Ana C. Reyes for the District of Columbia was a literary and legal masterpiece using Noem’s own vicious racism against her in a case challenging the revocation of TPS status for hundreds of thousands of Haitians refugees.
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Reyes started by debunking the government’s clumsy attempt to smear the plaintiffs: “Plaintiffs are five Haitian TPS holders. They are not, it emerges, ‘killers, leeches, or entitlement junkies.’” Instead, Reyes explained, they are a neuroscientist researching Alzheimer’s disease, a software engineer at a national bank, a laboratory assistant in a toxicology department, a college economics major, and a full-time registered nurse. The constant lies and dehumanization of immigrants are both a moral disgrace and, in this case, the regime’s legal Achilles heel.
“Plaintiffs charge that Secretary Noem preordained her termination decision and did so because of hostility to non-white immigrants,” Reyes wrote. “This seems substantially likely.” Reyes pointed to Noem’s own blatantly racist language and failure to conduct any independent review. While the statute allows her ample discretion regarding TPS determination, she does not have “unbounded discretion.” The court therefore found that she failed to clear the low bar that would allow her to deport the Haitian refugees.
SubscribedReyes then demolished the regime’s refrain that the courts must let the executive branch do whatever it pleases. “To the contrary, Congress passed the TPS statute to standardize the then ad hoc temporary protection system—to replace executive whim with statutory predictability.” (Increasingly, lower courts are rejecting the notion that the executive branch’s actions are unreviewable. It seems that Article III federal judges think there is a role for the federal courts in our constitutional system.)
In addition, Reyes cited the regime’s own travel warnings to demonstrate the irreparable harm that would befall Haitians if they were sent home. “‘Do not travel to Haiti for any reason’ does not exactly scream, as Secretary Noem concluded, suitable for return.” Then, in a tour de force, Reyes shredded Noem’s position that the balance of equities favors the government:
The Government does not cite any reason termination must occur post haste. Secretary Noem complains of strains unlawful immigrants place on our immigration-enforcement system. Her answer? Turn 352,959 lawful immigrants into unlawful immigrants overnight. She complains of strains to our economy. Her answer? Turn employed lawful immigrants who contribute billions in taxes into the legally unemployable. She complains of strains to our healthcare system. Her answer? Turn the insured into the uninsured. This approach is many things—in the public interest is not one of them.
While the statute allows Noem to consider the “national interest” in returning TPS holders, Reyes found that Noem failed to do the bare minimum required by law:
To recap, Secretary Noem’s national interest analysis involved cohorts that she cannot say include any current Haitian TPS holders: individuals who are not in the country, individuals in the country unlawfully, individuals in an over-inclusive database, and individuals already subject to exclusion from the TPS statute. This is not a minor detail. Because her national interest analysis focuses only on cohorts that do not involve Haitian TPS holders, there is no reasoned basis to believe that terminating Haiti’s TPS designation will address any of the concerns she raised. Quite the opposite, since turning around 353,000 lawful immigrants into unlawful ones overnight will further burden the very immigration-enforcement system she claims is already overburdened. This is the type of irrational decision-making the [Administrative Procedures Act] prohibits.
Moreover, Noem’s failure to consider any aspect of Haitians positive impact on the American economy was a dead giveaway. Reyes revealed substantial evidence that Noem (and Donald Trump) want them out for impermissible, racist reasons.
In stunning detail, Reyes recapped Trump’s overt racism. “President Trump has made—freely, at times even boastfully—several derogatory statements about Haitians and other nonwhite foreigners.” From calling them “illegal immigrants” (TPS gives them legal status) to his accusation they are “poisoning the blood” of Americans to his vile descriptions of immigrants (“not people,” “snakes,” “garbage,” “bad genes,” “probably have AIDS,” a “death wish for our country”) to his stated preference for immigrants from overwhelmingly white Scandinavia to his “false conspiracy theory that Haitian immigrants were ‘eating the pets of the people’ in Springfield, Ohio,” Trump has flaunted his abject racism. Reyes made the powerful case that Trump’s own words undermine his pretextual reason for ending TPS.
Taking a step back, regardless of the merits of this particular TPS decision, the standard of review, and of other legal technicalities, Reyes laid bare the disgusting, un-American, crude racism that underlies virtually everything this regime does. “To its credit, the Government does not defend President Trump’s derogatory statements. No one rationally could.” Instead, the government argued courts must ignore the president’s own words. Even setting aside Trump’s racist remarks, Noem’s own expressed racism eradicates any legitimate rationale for deporting them, Reyes found.
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Reyes’s conclusion is a jaw-dropper:
There is an old adage among lawyers. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither, pound the table. Secretary Noem, the record to date shows, does not have the facts on her side—or at least has ignored them. Does not have the law on her side—or at least has ignored it. Having neither and bringing the adage into the 21st century, she pounds X (f/k/a Twitter). Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the APA to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.
Reyes’s legal rigor, fidelity to the facts, and biting observations cut through the smokescreen that blinds too many in the legacy media and gives cover to the entire MAGA Party to condone Trump’s racism.
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It is refreshing and hopeful to find a public official who hoists the regime by its own racist petard and shows Americans the moral and legal rot at the heart of its policies. Reyes (as she has done in cases involving trans military personnel and other critical immigration issues) demonstrated that she is an undaunted, unabashed, and uncompromising defender of the Constitution, the rule of law, and truth.
Reyes exemplifies the excellence we see every week from lower court federal judges who are holding the line against a monstrously dishonest, lawless regime. If only we had a majority of Ana Reyes’s on the Supreme Court.
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