The civics class version of American government — the one taught to middle schoolers and to immigrants who are preparing for their naturalization tests — states that there are three branches: the legislative branch writes laws, the executive branch implements laws, and the judicial branch interprets laws.
Well, the last time that Congress passed a bill to revamp legal immigration to the United States was 1990. Since that time, immigration policy (and, increasingly, the rest of the federal government) has settled into a different equilibrium.
The executive branch makes policy. The judicial branch decides whether that policy is allowed to go into effect. And the legislative branch? If you caught me on a cynical enough day, I’d tell you that half of it (the Senate) controls the pace of appointing new judges; the other half of it (the House) doesn’t really do much of anything at all.
But last week, the House actually did something on immigration. A majority of members voted to legislatively reinstate Temporary Protected Status for Haiti — which the administration is currently fighting a court battle to terminate.
That same week, the Supreme Court announced that it’s rushing that battle to a resolution: instead of simply allowing the Trump administration’s policies to go into effect (as it has with other TPS terminations) or keeping them on hold while lower courts rule (as it did with the effort to eliminate birthright citizenship), the court set an oral argument spot next week to directly consider whether the Trump administration acted lawfully in terminating Haiti’s TPS designation, as well as that of Syria.
The flurry of activity on TPS may or may not be a good sign for the hundreds of thousands of people who hold it — at least as far as their ability in the medium term to stay in the United States. The Supreme Court’s opinion, which will likely come out in late June or early July, could not only settle the question of whether the administration can revoke the deportation protections and work permits of the 330,000 Haitian and 3,800 Syrian TPS holders, but also set a legal standard for the other legal battles over the administration’s efforts to terminate TPS for nearly a dozen other countries. If the Senate doesn’t take up the House’s bill — and there’s no indication yet that it will — that could be that.
But on some level, at least, the legislative versus judicial showdown over TPS recognizes that there is a need for certainty. And that certainty is exactly what, for decades, everyone in the federal government has pretended TPS holders don’t really need.
When Congress passed that immigration bill in 1990, one of the problems it sought to resolve was that the executive branch had been granting deferrals of deportation to certain immigrant groups when their countries were too unstable to safely return to — but there weren’t any clear guidelines for how those determinations would be made. Congress created Temporary Protected Status and tasked the Attorney General (and, later, the Secretary of Homeland Security) with deciding which countries were unsafe enough to require TPS for their nationals in the United States; how long those protections should run; and whether to renew protections that were set to expire, or even to redesignate the country for TPS so more newly-arrived immigrants could also be protected. Congress also, legislatively, designated El Salvador for TPS.
Then, in 1996, Congress inadvertently made TPS a whole lot more important. It passed a new law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which made it much harder for people to obtain permanent legal status in the United States — and which set up many of the legal structures that would be used to ramp up deportations aggressively in the 21st century. One of the upshots of IIRAIRA was that, if someone had been in the United States for a long time and had roots here but didn’t have legal status, their best shot was often to get some form of forbearance — positive discretion — from the federal executive branch.
If a country hadn’t recovered from a hurricane or a civil war after the first 18 months of TPS, of course a renewal seemed worthwhile. But over time, the question of whether to keep extending TPS designations got entangled with the inescapable fact that to terminate TPS was to doom thousands of people (or even hundreds of thousands) to packing up the lives they had established in the U.S. And the longer that the executive branch took to decide on how long to extend designations, the harder it got to end any of them.
Congress authorized the executive branch to consider whether conditions in the home country have improved enough for TPS to no longer be needed — not whether it would cause hardship to TPS recipients to revoke their protections. But there wasn’t any other policy process where those interests could be considered, either.
This is the fundamental truth that everyone who has real-world experience with immigration understands: the system is designed not to recognize. People who are in limbo aren’t frozen in time. Their situation may be unresolved, but their lives continue. Their home countries may get safer, or not. Their relationships with the people they know from their home countries may also change — not to mention, over time, they may know fewer people who haven’t left or more people who have returned. But every bit as importantly, they have developed lives in the United States. They have raised families and launched children into adulthood. They have bought houses and started businesses.
When people like me talk about “liminal status” or “twilight status,” this is what we mean — the millions of people whose immigration situation in the U.S. remains unsettled, while they themselves are settled in the U.S.
The Trump administration is explicitly acting to deny TPS holders’ interest in staying in the U.S. This is the main point of the lawsuit: Congress instructed the executive branch to look at country conditions and make an evaluation of safety, but the announcement terminating TPS for Haiti, for example, didn’t even pronounce Haiti to be safe. It simply said it would not be in the interest of the U.S. to keep extending TPS for Haitians.
But there’s an interesting argument — one that the Supreme Court endorsed several years ago, when it blocked the first Trump administration’s effort to kill the Deferred Action for Childhood Arrivals (DACA) program — that a sudden change in policy always requires the executive branch to think about who would be hurt by the change. This is known in law as a “reliance interest” — as in, people made plans by relying on the assumption that the status quo would continue. When reliance interests count, and when they’re enough to outweigh other factors, remains extremely vague — though it’s supposed to be strongest where property is at stake. In theory, this would be true of TPS holders — at least the homeowners and entrepreneurs among them — as much as of businesses facing the costs of complying with a new safety regulation.
It is not at all clear that the Supreme Court will even consider reliance interests when it takes up TPS, much less whether it will decide that TPS holders have a reliance interest worth recognizing. It would just be one of the many ways that U.S. immigration law acts to erase the differences between someone who’s lived in the U.S. for years and someone who’s just arrived or is still on their way.
That leaves Congress. There have been bills introduced for ages that would create a path to permanent residency for TPS holders; what got approved by the House last week, by contrast, simply extends existing TPS protections by legislative dictate. But it’s still more action than Congress has taken to protect TPS holders — or anyone with liminal status — in over a decade.
There’s no way we’re going to get out of this mess for good without members of Congress realizing that if they don’t step up for the interests of people with lives in the United States, no one else is obligated to do so.
