An activist judge in the 9th Federal Judicial Circuit, which covers California, insinuated last week that President Trump’s usage of the term “America First” indicates a preference for immigrants of white or European ancestry only. The insinuation was made in Judge Edward Chen’s decision halting the Trump administration’s rescission of Temporary Protected Status (TPS), which allows aliens from a number of developing countries to reside in the United States as their nations recover from natural disasters or political turmoil.
Chen appeared to be suggesting that the Trump administration’s decision to revoke the TPS designation was motivated by constitutionally impermissible racism.
“In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants,” Chen stated in his decision.
Chen is an Obama-appointed judge in the U.S. District Court for the Northern District of California. Because of his decision, aliens from Haiti, Sudan, Nicaragua, and El Salvador have obtained an indefinite reprieve from the decision to withdraw the TPS designations applicable to their countries. TPS permits aliens to live in the U.S. temporarily until the disaster or conflict that forced them to leave their country is over, but some TPS recipients have been allowed to remain in the U.S. for decades, even though the conditions that gave rise to the grant of their status have been resolved for years.
The judge listed what he alleged to be “evidence” that Trump hates people who aren’t white presented by the plaintiffs. He also attacked Trump’s comments related to mass immigration in Europe because the president said it is “changing the culture” and is “a very negative thing.” However, the one thing Chen failed to explain is how any of this is relevant to the president’s authority to grant and revoke TPS. Chen has suggested that Trump wishes to remove the affected individuals based on constitutionally impermissible racial bias, despite the fact that the TPS status for aliens from several other non-white nations including Syria and Yemen were extended.
But TPS determinations are specifically committed to the Executive Branch by Congress, under an exercise of the Congressional foreign affairs powers. Therefore it is far from clear that decisions about TPS are subject to constitutional challenge of any sort, much less one based on such unsubstantial evidence. As the Supreme Court held in Matthews v. Diaz, “The political branches of government have considerable flexibility in responding to changing world conditions, and judicial review of decisions made by the Congress or the President in the area of immigration and naturalization is narrow.”
Of course, the real irony is Judge Chen accusing the president of racism for making a policy decision based purely on legal status – TPS is, as its title suggests, not intended to be permanent. In reality, if anyone was trying to incorporate race into this issue, it was Judge Chen. His decision to issue a temporary injunction was not based on any relevant law, regulation or precedent. Yet again, the Trump administration finds its attempts to restore the rule of law to our immigration system stymied by an activist judge grossly exceeding the limits of his constitutionally assigned role.