How temporary is temporary?

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NICK EICHER, HOST: It’s The World and Everything in It for this 11th day of May, 2026. We’re so glad you’ve joined us today. 

Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. 

Time now for Legal Docket, and I must first correct something we said last week in the Monsanto Roundup case—the herbicide we called pesticide. Not only did we say it, but we used several soundbites from attorneys using the same wrong term.

Justice Clarence Thomas once worked for Monsanto as an attorney, and I should’ve listened to him more carefully:

THOMAS: Well, I think my point is, first of all, this is a herbicide, not a pesticide.

Herbicide. Weed killer, not bug killer, even though both are regulated under the same federal law.

EICHER: And of course, not to get into the weeds or anything, but this has been bugging us all week! 

REICHARD: Haha! I see what you did there!

EICHER: Alright, on now to a case testing the power of the executive branch of government over immigration.

ROBERTS: We’ll hear argument first this morning in case 25-1083, Mullin vs. Doe and the consolidated case.

Well this one asks whether the federal government can end Temporary Protected Status—TPS—for Haitians and Syrians.

Congress created TPS three-and-a-half decades ago. It permits the Secretary of Homeland Security to protect people already in the U.S. when their home countries are not safe. Reasons might be war, or disaster, or some other crisis. Protection granted for 18 months, but it may be—and has been—extended.

REICHARD: Now Haiti received TPS after its devastating earthquake back in 2010. Syria, in 2012 in the midst of civil war.

So, “temporary,” isn’t so much.

The Trump administration concluded the conditions in those nations no longer justify TPS. We’re talking about 350,000 Haitians and around 6,000 Syrians. And they sued.

EICHER: So the question before the Supreme Court is actually two-fold: First, did the Trump administration follow the proper statutory steps to end TPS? And second, do the courts even have the power to review that executive branch decision?

The government says no, it does not; there is no review whatsoever. Foreign policy decisions belong with the executive. Full stop.

Solicitor General John Sauer argued the statute says exactly that:

SAUER: …there is no judicial review of any determination of the Secretary with respect to the designation or termination or extension of a designation of a foreign state for Temporary Protected Status. That provision means what it says… Respondents' attempts to carve out exceptions to the review bar would eviscerate it.

But Chief Justice John Roberts wasn’t so sure:

ROBERTS: You rely on Trump versus Hawaii in your argument, but that involved the president and entry restrictions. Here we’re concerned with the Secretary and aliens that are already present. Your argument is a significant expansion of Trump versus Hawaii, isn’t it?

You may recall that earlier decision in which the high court upheld President Trump’s travel ban from predominantly Muslim countries, citing inadequate vetting procedures.

But in this case, the people are already here inside the country.

Justice Ketanji Brown Jackson pushed back hard on the process used by the Secretary of Homeland Security to terminate TPS status for Haitians and Syrians:

JACKSON: Now we have a statute in which Congress has clearly required the Secretary to take certain statutory steps, to include, for example, consultation. ….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?

REICHARD: Justice Elena Kagan homed in on what exactly is a consultation:

KAGAN: You consult with somebody on the topic. That means you ask a question, they give an answer that’s on the same topic...‘Weren't the Dodgers great last night?’… does not seem like appropriate consultation.

Note, that’s not what happened, but you get the point. 

The government lawyer stayed firm that the courts have no business interfering:

SAUER: So if she sought input from State, she has consulted… How much do I need to talk? Which agencies do I talk to? Is this response good enough?

…reiterating this is the kind of discretionary call vested in the Secretary.

Justice Jackson tested the government with this:

JACKSON: The Secretary's decision and I had a hypothetical… to pull out a Ouija board… … and your view would be that no judicial review of that claim?

SAUER: In any exception that the court would craft here would be something that a truck could be driven through.

EICHER: And then there’s the allegation of discriminatory intent on the part of the administration. Justice Sonia Sotomayor mentioned some examples, including this one:

SOTOMAYOR: Now we have a President saying at one point that Haiti is a "filthy, dirty, and disgusting s-hole country" --I'm quoting him – … I don't see how that one statement is not a prime example … showing that a discriminatory purpose may have played a part in this decision.
….

SAUER: All those statements in context refer to problems like crime, poverty, welfare dependence, drugs, drug importation.

Justice Kagan was not buying the racial animus argument:

KAGAN: You know, ….the injection of this racial component into it, I guess I don't quite see how that operates when all of these programs went.

REICHARD: But the Haitians’ lawyer Geoffrey Pipoly pounded the racial animus argument hard. 

Listen to this lengthy exchange with Justice Samuel Alito:

ALITO: TPS was terminated for quite a list of countries … and I don’t like dividing up the people of the world arbitrarily into three racial groups, but you say they’re all non-white and that’s the distinguishing characteristic?

PIPOLY: That is the distinguishing characteristic that the district court held. But I would —I would emphasize, Justice Alito, that—

ALITO: Well, do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are—that all of them, are they all non-white?

The lawyer hemmed and hawed around for a while, and then Justice Alito invoked his own ancestry:

ALITO: How 'bout southern Italians? (Laughter.)

PIPOLY: Well—well, certainly—certainly, 120 years ago, when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.

… later … ALITO: You have a really large—you have a really broad definition of who’s white and who’s not white. As I said, I don’t like dividing the people of the world into these groups.

EICHER: Thus showing that “whiteness” isn’t a scientific fact but a shifting social label. And that led back to statutory interpretation as to what is the meaning of the word “determination,” in the context of how the Secretary decided to end TPS.

So is determination the final decision, or is it the entire process leading up to the decision?

REICHARD: I have no prediction on how this one will go.

Alright, next case:

ROBERTS: We’ll hear argument this morning in case 25-429, Blanche vs. Lau.

This is another immigration matter, but more technical.

The issue is this: when a lawful permanent resident returns to the U.S. from outside the U.S., can the government treat that resident as though he is seeking admission, and therefore potentially deportable, based simply on allegations of criminal conduct?

EICHER: A man named Muk Lau holds a green card. He is charged with selling counterfeit goods. He left the country prior to his trial, then returned, and immigration stopped him at JFK airport. 

A person on the air side of passport control at JFK has not technically “entered” the U.S., and that gives the government more power.

Immigration gave him a type of temporary permission called “parole” to stay while his criminal case worked out. After he pleaded guilty, the government moved to deport him.

REICHARD: Lau says the government cannot do that because before he’d pleaded, he hadn’t yet been convicted.

Justice Sotomayor uncovered the tension, asking Assistant to the Solicitor General Sopan Joshi if the government had enough proof of guilt right there at the airport:

SOTOMAYOR: Did he have enough proof at that moment? Forget --

JOSHI: For whom? For whom?

SOTOMAYOR: For him.

JOSHI: Yes, the border officer had enough proof for himself.

Lau’s lawyer argued that lawful permanent residents might be paroled just based on a mere suspicion, and that can’t be right. 

Justice Alito:

ALITO: Yeah, but that's not what we have here. We have a criminal charge. The immigration officer didn't make that up. The charge was leveled by the State of New Jersey. I guess the State of New Jersey is in on this conspiracy?

EICHER: Justice Amy Coney Barrett saw a practical problem with on-site interrogation:

BARRETT: How would we know whether the border officer had clear and convincing evidence? There would be no administrative record.

A moment of levity came when the government lawyer laid out a three part answer to the question about how Lau was classified upon re-entry to the U.S.:

JOSHI: And then the third, I'm going to try and respond to what I anticipate will be your response to my first two answers. (Laughter.)

KAGAN: Because -- because -- that would be because the first two won't sound very good? (Laughter.)

REICHARD: I think the government will win here on statutory grounds, but maybe not by very much.

Okay, quick mention of a case argued in March: Kealthley v Buddy Ayers Construction. It’s about a legal rule called judicial estoppel. Now, that’s a fancy lawyer term, but it’s basically the court’s “No Flip-Flopping” rule. It stops people from taking inconsistent positions just to win different cases.

EICHER: So here’s what happened in this case: A man filed for bankruptcy, but he didn’t tell that court he was also planning to sue someone over a car accident. Since a legal claim is technically an “asset,” the lower courts tossed the accident case out, saying, in effect: “You told the bankruptcy judge you had nothing; you can’t show up here now and say you’re owed a million dollars.”

But some of the Justices on the Supreme Court, including Chief Justice Roberts, seemed skeptical of that “all-or-nothing” approach. He worried that by punishing the man for a paperwork mistake, the court was accidentally giving a “get out of jail free” card to the person who caused the crash.

ROBERTS: In terms of the courts' integrity, it does seem a little much that the one person who's getting off is the one whose, whose truck hit the other guy, right?

REICHARD: In other words, judicial estoppel shouldn’t be a windfall for reckless drivers. We expect the Supreme Court to send the case back with instructions to be more flexible.

And that’s this week’s Legal Docket!

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