transcript

Speaker 1:
[00:00] Have you ever held a job or a lease where someone could pull the plug with almost no warning?

Speaker 2:
[00:04] Oh, absolutely. I once rented an apartment month to month, 30 days notice, and I'm out.

Speaker 1:
[00:09] Right, and you probably spent the whole time thinking, what if they actually do it?

Speaker 2:
[00:13] Constantly.

Speaker 1:
[00:14] Imagine that feeling. Now multiply it by losing your legal right to live and work in the only country you've called home for over a decade, with 60 days notice. That's basically what we're talking about today, Mullin versus Dahlia Doe, formerly known as Noem versus Doe. It's consolidated with Trump versus Miot. The court hears oral arguments in this case on April 29th, the last day of oral arguments for the term.

Speaker 2:
[00:39] Here's the thing, 6,132 Syrians woke up and learned, 60 days, you lose your legal status, gone.

Speaker 1:
[00:47] Wait, 60 days to upend your entire life?

Speaker 2:
[00:50] 60 days. Secretary of Homeland Security, Kristi Noem announced the termination of Syria's temporary protected status, TPS, on September 22nd, 2025. November 21st, the clock expired.

Speaker 1:
[01:04] And TPS, what does that actually mean in plain English?

Speaker 2:
[01:08] Congress set up a program where people from countries in crisis, war, natural disaster, extraordinary chaos, can stay in the United States legally, work legally, and avoid deportation while conditions back home stay dangerous.

Speaker 1:
[01:22] And now the government says Syria no longer qualifies.

Speaker 2:
[01:26] The Secretary decided that. And 6,132 people's futures. Doctors, teachers, business owners, parents, ride on whether federal courts can even question whether she got that right.

Speaker 1:
[01:38] Welcome back to The High Court Report. Today, can federal courts review whether the Secretary of Homeland Security followed the law when she stripped 6,132 Syrians of their legal status? Quick reminder, please follow, rate, subscribe, share and review the podcast on Apple, Spotify, YouTube, anywhere you podcast. Just search The High Court Report. And look, if you care about immigration law, this case deserves your attention. Actually, if you ever held legal status in any form, this case deserves your attention, even if your version of legal status involves a library card. Questions about this case, reach out to us via LinkedIn at The High Court Report.

Speaker 2:
[02:15] All right. Here's what you need to know. Okay, the formal legal question, and this one arrives in two parts. Part one, the TPS statute contains a provision that reads, 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. Does that language strip federal courts of all power to review how the secretary terminated Syria's TPS?

Speaker 1:
[02:42] So, do courts even get to look at this at all?

Speaker 2:
[02:45] That's the threshold question. If the answer comes back, no, the whole case ends right there. The Syrian TPS holders lose before anyone examines whether Secretary Noem actually followed the rules. The court just says, jurisdiction stripped, go away.

Speaker 1:
[03:00] And part two?

Speaker 2:
[03:01] If courts can review it, did the secretary violate the Administrative Procedure Act when she terminated Syria's TPS? The APA, the federal law requiring agencies to follow proper procedures and avoid arbitrary capricious decisions. Did she break it?

Speaker 1:
[03:17] So, in plain English, can courts police how the secretary ended Syrian TPS holder's status? And if yes, did she break the rules?

Speaker 2:
[03:25] Exactly. And buried in part two, the court needs to sort out whether she relied on factors Congress never authorized at the termination stage. One more wrinkle. This case arrives at the court as an emergency. No scheduled oral argument, no full merits briefing. The government filed a stay application and asked the court to treat it as a certiorari petition. Meaning, skip the Second Circuit entirely and take the case now.

Speaker 1:
[03:49] So the court also decides, do we even take this case right now or let the Second Circuit finish its work first?

Speaker 2:
[03:55] Three questions layered on top of each other. Let's get into how it all got here.

Speaker 1:
[03:59] Congress created TPS in 1990 to replace an older program that critics called arbitrary and politically driven. A program that lacked any specific criteria and produced outcomes based on political convenience rather than objective conditions. Congress designed TPS to fix that. It anchored decisions in identifiable facts, not political wins. And Syria first earned TPS designation in 2012. March 2012, because Bashar al-Assad launched a brutal crackdown on his own citizens. Civil war erupted. 61% of Syria's pre-war population ended up displaced. The earthquake in February 2023 compounded an already catastrophic humanitarian crisis. The Biden administration last extended Syria's TPS in January 2024, citing ongoing armed conflict in its 13th year.

Speaker 2:
[04:47] And then the new administration arrived.

Speaker 1:
[04:49] At her confirmation hearing, Secretary Noem declared TPS abused and manipulated by the Biden administration. Then candidate Trump told voters he planned to revoke TPS because, his words, it's not legal. The district court judge later called that characterization plainly incorrect.

Speaker 2:
[05:06] And Noem said about doing exactly what she promised.

Speaker 1:
[05:09] She terminated TPS for every single country that came up for review. Venezuela, Haiti, Afghanistan, Cameroon, Nicaragua, Honduras, Nepal, Syria, South Sudan, Burma, Somalia, Ethiopia, Yemen. 13 terminations, 100%. Syria came eighth in September 2025.

Speaker 2:
[05:29] 60 days notice.

Speaker 1:
[05:31] 60 days. Termination effective November 21st, 2025. Seven Syrian nationals sued in federal court in Manhattan on October 20th. Judge Catherine Polk-Fayla held three hours of oral argument, then issued her ruling on November 19th, two days before the deadline.

Speaker 2:
[05:47] That's cutting it extremely close.

Speaker 1:
[05:49] Very. She postponed the termination under Section 705 of the APA, the provision allowing courts to pause agency action while legal challenges proceed. The government waited more than two weeks after that ruling to seek a stay from the Second Circuit, never moved to expedite the appeal. The Second Circuit issued a three-page denial on February 17th, 2026. The Solicitor General filed this application at the Supreme Court on February 26th.

Speaker 2:
[06:15] And now it's at the Supreme Court. The Court received this as an emergency stay application. The third time in roughly one year, the government sought emergency Supreme Court intervention in a TPS case. The government also asked the Court to treat the application as a certiorari petition, meaning skip the Second Circuit entirely and take the case now to resolve what the government calls lower court's persistent disregard for the Court's prior guidance.

Speaker 1:
[06:42] High stakes. Fast clock.

Speaker 2:
[06:43] All right. Let's get into the arguments, the government's first and biggest argument. Congress already answered the core question. Courts lack power to review TPS termination decisions. Full stop.

Speaker 1:
[06:55] That sounds sweeping.

Speaker 2:
[06:56] It is sweeping. The TPS statute contains what lawyers call a judicial review bar, a provision that strips courts of jurisdiction. The exact language. 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. The government leans hard on the word any. The Supreme Court told us in Patel versus Garland, a 2022 case, that any captures determinations of whatever kind. The government argues the TPS holders' APA claims, no matter how they label them, procedural violations, collateral challenges, process failures, still attack the secretary's termination decision. That puts them inside the bar.

Speaker 1:
[07:44] Stop trying to rename it. The challenge goes to the termination. The bar covers the termination.

Speaker 2:
[07:49] That's the government's framing, and they warn, allowing courts to police the secretary's process would, in their words, eviscerate the statutory bar, for almost any challenge could be recast as a challenge to its underlying methodology.

Speaker 1:
[08:03] What about the APA claims, even if the court finds review possible?

Speaker 2:
[08:07] The government says those fail, too. On consultation, the Federal Register Notice states the secretary consulted with appropriate agencies. The statute requires only consultation with appropriate agencies. No minimum depth, no required format, no content requirements. Courts, the government argues, cannot impose additional procedural requirements Congress never wrote. On national interest, the government points out that Syria's original 2012 designation rested partly on the extraordinary and temporary conditions ground, which expressly incorporates a national interest test. Secretary Noem found the designation contrary to national interest. Exactly what the statute asks her to determine at that stage.

Speaker 1:
[08:50] And on the predetermined decision argument?

Speaker 2:
[08:53] The government pushes back firmly, a new administration can pursue policy priorities. That a new administration may pursue its policy priorities is a feature of our constitutional system, not a basis to invalidate agency decisions.

Speaker 1:
[09:07] Okay, now the other side. The Syrian TPS holders' first argument, that judicial review bar doesn't reach this far. And here's the remarkable data point. Every single published court to examine this question sided with the Syrian TPS holders, 16 decisions, zero published rulings sided with the government.

Speaker 2:
[09:27] Zero.

Speaker 1:
[09:28] Zero. The TPS holders rely on McNary vs. Haitian Refugee Center, a 1991 Supreme Court case, where the court held that a comparable immigration statutes reference to a determination described a single act, the denial of an individual application, and did not bar what the court called general collateral challenges to unconstitutional practices and policies. The TPS holders argue the bar covers only the secretary's factual conclusions about country conditions, did Syria meet the criteria, not whether she followed the required process to reach that conclusion. And they raise a hypothetical to demonstrate why the government's reading leads somewhere absurd.

Speaker 2:
[10:09] A genuinely wild one. Under the government's reading, a future secretary could, their actual words from the brief, sell TPS designations to the highest bidders, and courts could do nothing. Congress designed TPS to constrain arbitrary executive discretion, not to create unreviewable executive power. No rational Congress, they argue, building a statute specifically to eliminate political arbitrariness, intended to hand agencies a blank check. On the merits, did the secretary actually follow the required process?

Speaker 1:
[10:43] The TPS holders say absolutely not. On consultation, the state department simultaneously maintained a level 4 do not travel advisory for Syria, the most severe warning the department issues, stating that no part of Syria is safe from violence. And the secretary's so-called consultation with state, one email, grouping Syria with three other countries. No specific questions asked, the response, a blanket sign-off that state had no foreign policy concerns with ending these TPS designations. Without examining any country individually, the TPS holders argue that doesn't satisfy what courts define as a meaningful exchange of information.

Speaker 2:
[11:22] On national interest, the TPS holders make a clean textual argument. The statute allows the secretary to invoke national interest only at the initial designation stage under the extraordinary and temporary conditions ground. The termination provisions simply never mention national interest, and 34 years of agency practice confirm it. No secretary, before 2025, ever justified a TPS termination based on national interests divorced from country conditions. Congress designed TPS precisely to insulate these decisions from, and courts reviewing TPS cases have quoted this directly, the vagaries of our domestic politics.

Speaker 1:
[12:04] Congress built that wall deliberately in 1990. The secretary knocked it down in 2025.

Speaker 2:
[12:10] So those are the legal stakes. But what does this actually mean for real people?

Speaker 1:
[12:15] If the government wins this day, Secretary Noem's termination takes effect immediately. All 6,132 Syrian TPS holders lose legal status and work authorization. Vulnerability to arrest and deportation returns overnight.

Speaker 2:
[12:28] Can't they just switch to another visa or immigration category?

Speaker 1:
[12:32] Here's where it gets particularly stark. As of January 1st, 2026, the government paused all USCIS adjudications for Syrian nationals, asylum applications, benefit requests, everything. The government shut the alternative pathway at the same moment it eliminated TPS. So TPS holders face loss of status with no safety net and no door to open.

Speaker 2:
[12:53] And the destination? The State Department's own December 2025 advisory warns against all travel to Syria. Level 4 maximum severity, no part of Syria is safe from violence. Named Plaintiff Layla faces return to a Damascus neighborhood that airstrikes struck shortly before Secretary Noem announced the termination. That detail sits in the court record. The government never disputed it.

Speaker 1:
[13:19] Now flip it. The Syrian TPS holders win and the stay application fails.

Speaker 2:
[13:24] The district court's postponement order stands. The 6,132 Syrians retain their legal status and work authorization, while the Second Circuit works through the merits on a normal schedule. Briefing began March 11th, 2026.

Speaker 1:
[13:39] But the implications extend well beyond 6,132 people.

Speaker 2:
[13:44] Enormously. The jurisdictional question whether courts can review TPS terminations at all arises in every one of the government's 13 terminations. If the Supreme Court rules the bar applies broadly. Every district court order blocking those terminations faces reversal. Haiti, South Sudan, Burma, Honduras, Nicaragua, all potentially unwind. Across all those cases, we're potentially talking about hundreds of thousands of people.

Speaker 1:
[14:13] And the national interest question carries its own massive weight. If the court validates the secretary's ability to invoke national interest as a standalone justification for termination, divorce from country conditions, TPS effectively becomes a pure foreign policy tool. Any administration could terminate TPS for any country at any time by simply asserting national interest. The guardrails Congress spent years designing evaporate entirely.

Speaker 2:
[14:39] And on the other side, if the court rules national interest doesn't belong in the termination analysis, the secretary must engage with actual country conditions. She must genuinely consult other agencies. She must grapple with the facts on the ground, which the TPS holders argue Congress always intended. A process, in court's words, predictable, dependable, and insulated from electoral politics.

Speaker 1:
[15:05] So those are the stakes. What should we watch for at the court?

Speaker 2:
[15:08] This case tracks on two levels. First, the immediate stay question. The court may resolve that without any oral argument, potentially within days or weeks of the application. Second, the government asked the court to grant certiorari before judgment. Extraordinary relief that requires a showing of imperative public importance. That process, if granted, would eventually produce full briefing and oral argument.

Speaker 1:
[15:32] The court already granted stays in two Venezuela TPS cases without explanation. So, at least some justices found the government's arguments persuasive there. Does that control here?

Speaker 2:
[15:42] Watch for whether the court signals it wants fuller briefing before ruling. The TPS holders argue this case makes a uniquely poor vehicle for cert. The government refused to produce an administrative record throughout the district court proceedings. More developed TPS cases with published decisions on full records already exist. And the government chose to seek on-bank review, rather than courteerary in the most developed Ninth Circuit case, a choice the TPS holders call impossible to square with the claimed urgency here.

Speaker 1:
[16:12] On the merits, if cert gets granted, I'd watch Justice Barrett and Justice Kavanaugh closely on the judicial review bar. Both joined the unexplained Venezuela stays. When they confront this statute's text directly, how does any determination interact with McNary? Can a court protect any procedural requirement without attacking a determination? That textual confrontation could produce real surprises. The national interest question also carries potential to fracture the court in unexpected ways. The TPS holders textual argument, national interest simply doesn't appear anywhere in the termination provisions could attract votes from justices who generally favor executive deference, but read statutes by their plain text.

Speaker 2:
[16:54] Bottom line time. Why does this case matter?

Speaker 1:
[16:57] Because it answers whether any president can dismantle legal protections for hundreds of thousands of immigrants simply by asserting national interest. With no court empowered to ask whether she followed the rules Congress wrote. And more immediately, for 6,132 Syrians who built their lives here, raised kids here, opened businesses here, it determines whether they face deportation to a country where, in the State Department's own words, no part of Syria is safe from violence.

Speaker 2:
[17:24] This one carries real world stakes for real people. And it could reshape the legal architecture of every discretionary immigration program Congress ever designed.

Speaker 1:
[17:33] If you made it this far, share this episode with someone who thinks immigration law doesn't touch their life. Because the question of whether courts can police whether federal agencies followed their own required procedures? That principle extends well beyond immigration. It touches every regulatory agency in the federal government.

Speaker 2:
[17:49] Every program, every protection, every procedural rule Congress ever required an agency to follow.

Speaker 1:
[17:55] Big case. Real stakes. That's it for today's episode. Please follow, rate, subscribe, share, and review the podcast on Apple, Spotify, YouTube, anywhere you podcast. Talk to you soon.